Is knowledge of an individual’s real name more or less valuable than knowledge of the efforts exerted in an attempt to conceal it? This is a question we might usefully pose as the deadline approaches for receipt by the Inquiry into Undercover Policing of responses to its latest set of “minded to” decisions on anonymity applications.
In eight out of the nine cases under consideration, the inquiry chair is “minded to” issue restriction orders in respect of the real names of the former officers in question (Inquiry Press Release, 2 October 2018: p. 1-2). Although the justifications for the preliminary decisions differ marginally from case to case, the thread of reasoning which draws all, or most, together is expressed in the following terms:
“It is not necessary to permit the Inquiry to fulfil its terms of reference that the real name...should be published...the interference in the right to respect for private and family life...which it would cause would not be justified under Article 8(2) of the European Convention on Human Rights”(Inquiry Note 11 in (HN4), 21 June 2018: para. 3).
The eight cases which are pending are not the only instances in which restriction orders have been made or contemplated in respect of the real names of former officers whose periods of undercover deployments are of interest to the inquiry (see, for example, Inquiry Note 5, 7 March 2018). Decisions on anonymity applications are always accompanied by an explanatory note. The detail in these notes are often very sparse, however, there is detail enough to test the inquiry’s claim that the use of restriction orders will not impede the inquiry in achieving its objectives (e.g. Inquiry Press Release, 2 October 2018: p. 2). The claim is not over-optimistic. Indeed, it is arguable that restriction orders in respect of the real names of former undercover officers reveal more of relevance to the inquiry’s objectives than might have emerged if disclosure of these real names had been forced. The restriction orders, in and of themselves, tell us a great deal about the management and supervision of covert policing operations.
Firstly, the use of restriction orders may be indicative of some defect in the design and/or management of the covert operation itself. Effective undercover operations dictate that a “strong sterile corridor” (Inquiry Note 5, 7 March 2018: paras. 3 & 11) between an officer’s cover name and his/her real name is erected and maintained. The words in quotation (immediately above) are the inquiry chair’s own, and must be understood to refer to the measures which those managing/overseeing covert operations have put in place to protect an undercover officer’s real identity. The case of HN96 is one example in which evidence of just such impenetrable access to the officer’s real name led the inquiry to refuse the application for restriction of HN96’s cover name on the basis that its disclosure was unlikely to lead to discovery of HN96’s real name (Inquiry Note 5, 7 March 2018: para.11). How is this relevant to the question of whether the inquiry objectives can be achieved in spite of the use of restriction orders? Module two of the inquiry’s terms of reference provides an answer. The module is intended to examine, among other things, the “...care after the end of an undercover deployment...” (Inquiry Strategic Review, May 2018: p. 11) taken in respect of an officer engaged in covert duties. A lack of appropriate care may be evidenced by the absence of the requisite “strong sterile corridor”, and such absence might be inferred from the number of officers who have successfully applied for restriction orders in respect of their real names.
Secondly, restriction orders may indicate a failure by particular undercover officers to meet appropriate standards in the use of cover/real names. It is now widely known that officers during deployments have engaged in at least two forms of misconduct. Officers have sought to obtain intelligence by deceiving women members of political campaigns into intimate relationships; and have wrongfully used death certificates of children in order to create false, but plausible, cover identifies. In light of this knowledge, the possibility that, through carelessness or recklessness (misconduct), an undercover officer has allowed those spied upon (and others) to connect his/her real and cover identity, or the real/cover name of another officer, cannot be ruled out. It can be seen from module one of the inquiry’s terms of reference that scrutiny of the “conduct” of undercover officers during deployments (Inquiry Strategic Review, 18 May 2018: p. 11) will be undertaken, which ought to include conduct of a type which endangers a covert operation.
If it is felt that the foregoing is all a little speculative, we can now move on to firmer ground -to those instances where restriction orders have been granted to avoid injury to the “well-being and...health of …children” (Inquiry Ruling 12, 7 August 2018: para. 6), or to avoid “...anxiety and stress...” to family members (Inquiry Note 11, 21 June 2018: para. 20). The use of restriction orders in these cases is strongly indicative of a failure by the managers of covert operations to exercise due care to ensure that innocent third parties (including family members of undercover officers) are not exposed to undue suffering.
Indeed, it would seem that so grave has been this failure of care and so widespread its consequences that the restriction order is now the only means through which to compensate for the original neglect. Occasionally, non-state core participants in the inquiry are called upon to join the inquiry chair in providing protection to these innocent third parties, and it stands very much to their credit that they have so far done so (e.g. Inquiry Ruling 12, 7 August 2018: para.7).
Module three of the inquiry’s terms of reference is the most forward looking of all; intended as it is to explore “... how undercover policing should be conducted in future...” (Inquiry Strategic Review, May 2018: p. 11).
The module is drafted in such a way as to leave open to the inquiry chair, and the diverse panel of experts who will join him at that stage, the possibility of recommending that covert policing of political campaigns (whose activities pose no threat of injury to the public) should be entirely outlawed. In the event of such a possibility being mooted, the panel would surely be aided by compelling evidence of the devastating impact undercover political policing has had on family members and others. Such evidence is likely to come from two sources. The first of these sources will be the evidence of non-state core participants to the inquiry, who include women who were deceived into intimate relationships with undercover officers. The second of these sources will be gathered from the record of the deliberations and decisions of the inquiry chair, whose justifications for making restriction orders against disclosure of real names arguably provides the best evidence of the potentially disproportionate interference into the lives of innocent third parties posed by covert policing of political campaigns.
Debate about the impact of restriction orders on the ability of the inquiry to meet its objectives is likely to outlast the inquiry itself. For those interested parties who even now are contemplating with dismay another batch of “minded to” decisions, I offer the suggestion that, at least in the case of real name anonymity, restriction orders do not protect or endorse covert policing: they condemn it.