Open Justice, Virtual Hearings, and the Undercover Policing Inquiry (24.6.2020).
Until the coronavirus emergency social distance and shielding regulations were put in place, the Undercover Policing Inquiry had arranged for witnesses involved in its tranche 1 evidence hearings to give their evidence in an open hearing in a room appropriate for the purpose. It is now proposed that evidence will be given at virtual hearings which will be conducted remotely (Inquiry Statement, 29 May 2020, para. 3). This commentary draws on Richard Susskind's recent publication, Online Courts and the Future of Justice, to assesses the inquiry's post-coronavirus proposals. Although Inquiries are not courts., their conduct gives rise to the same concerns about public access as do the courts, and Susskind's work offers a vehicle for exploring how virtual hearings and other forms of online court processes can facilitate access to justice.
Date Privacy, Inquiry Decisions, and the Lurking Threat of Judicial Review (11.4.2019).
This commentary follows the second public hearing of the inquiry into undercover policing concerning the personal data it holds on private individuals who were subjected to police surveillance. The commentary explores whether the inquiry's plan to disclose to individuals named or otherwise identified in intelligence reports unredacted versions of those reports is consistent with the General Data Protection Regulation (GDPR), which came into force in May 2018. It concludes that the inquiry's position in regard to disclosure of personal data would be difficult to challenge by way of judicial review proceedings, since it is underpinned by an assessment of resource constraints which is unlikely to be proved irrational.
Do You Want to Know a Secret? (8.2.2019).
This commentary follows the first of two public hearings of the inquiry into undercover policing which aim to decide how the inquiry should deal with the vast amount of personal data it has in its possession. The key message of the commentary is that whilst the inquiry and inquiry core participants readily accept that individuals who were spied upon have a right, in principle, to details of the surveillance operations in which they were involved, there is less clear evidence of understanding that many such individuals may not seek disclosure, and may actively resist any involvement in the inquiry process. The commentary predicts that the lawyers for the inquiry and core participants will not be able to find a legal framework which shields the inquiry from the difficult task of balancing potentially diametrically opposing interests and desires.
What's in a (Real) Name (11.10.2018).
In light of concerns over the number of anonymity orders the inquiry into undercover policing has made at the request of former undercover police officers, this commentary explores the extent to which inferences about the damaging nature of the covert surveillance of political activists can be drawn from the very fact that an anonymity order is deemed appropriate. It examines the reasons put forward by the inquiry when justifying an order restricting disclosure of a former undercover officer's real name, and argues that whilst on the face of it these appear favourable to the officer in question, and to the strategy of undercover policing in general, a reasonably astute advocate for non-state core participants ought to be able to use those reasons to show why covert operations of the kind under investigation by the inquiry cause harm that is disproportionate to its aims, and thus should be outlawed or restricted.
Public Inquiries: Who Discloses What, and in Whose Interests? (9.8.2018).
This commentary is about a former undercover police officer, whose cover name is Carlo Neri. On 7 August 2018, the chair of the undercover policing inquiry ruled that Carlo Neri's real name should not be disclosed. However, the ruling also revealed that Carlo Neri's real name was in fact already known to some journalists and some inquiry non-state core participants - all of whom had arrived at their knowledge through processes entirely unconnected to the inquiry - consequently, the ruling was powerless to prevent disclosure of Carlo Neri's real name. The Carlo Neri case draws attention to the fact that rights and obligations of inquiry core participants have not been clearly defined. The commentary reflects on the circumstances in which it would be legitimate for inquiry core participants lawfully to disclose Carlo Neri's real name.
Encounters at the Crossroads of the Inquiry into Undercover Policing (25.6.2018).
This commentary highlights a number of potentially transformative developments in the undercover policing inquiry process, not least of which was the campaign run by the handmade cosmetics chain, LUSH UK. The campaign highlighted the way undercover police officers sought to further covert surveillance operations by deceiving women members of political campaigns into intimate relationships. The commentary reflects on the intervention of a powerful private actor into the public inquiry process, concluding that such an actor would be required to demonstrate higher levels of accountability than would be expected of an inquiry witness or core participant. It concludes that LUSH UK's desire to expose institutional sexism in the police force should have been balanced by an equal demonstration of concern over institutional racism.
A Note on the Inquiry into Undercover Policing Strategic Review (11.5.2018).
This is a short analysis of the inquiry into undercover policing strategic review, which was published on 10 May 2018. Its primary intent is to highlight the success of non-state core inquiry participants in encouraging the inquiry to give greater consideration to the need for openness and transparency.
On Deconstruction and Closed Courts (8.5.2018).
The inquiry into undercover policing has, on a number of occasions, made important decisions in closed court sessions, excluding core participants and their representatives, as well as members of the public. This commentary draws on Nisha Kapoor's 2018 monograph, Deport, Deprive, Extradite: 21st Century State Extremism, and Jacques Derrida's 1990 essay, Force of Law: The 'Mystical Foundations of Authority, in an effort to explain why closed court hearings are objectionable - even when the outcome of the closed hearing is not disputed.
Fear of Black Justice? (20.3.2018).
This commentary examines the extent to which the inquiry into undercover policing should have regard to the findings of the McPherson Inquiry into the death of Stephen Lawrence. On the subject of institutional racism in the police force, it argues that a request from a former undercover police order for an anonymity order on the basis of a fear of reprisals from a member of a black justice campaign should be treated with extreme caution. Following McPherson, the undercover policing inquiry should be especially alert to the possibility that any expression of "fear" may have no grounding in objective fact, but may be, instead, the result of institutionally racist expectations that black people will often resort to violence.
Lost Chances (10.12.2017).
This commentary draws on the transcript of the public hearing of the inquiry into undercover policing, held on 21 November 2017, and Helen's Reece's seminal essay, Losses of Chances in the Law (1996), to reflect upon the evidential difficulties potentially faced by women who were deceived into intimate relationships with undercover police officers, and who decide to pursue legal remedies for their psychological injuries caused by the sexual misconduct. It argues that such difficulties may be the direct result of the grant of anonymity orders pursuant to section 19 of the Inquiries Act 2005.
BOOK REVIEWS & CASE NOTES
“Coded Inequity” and the Undercover Policing Inquiry. A Review of Ruha Benjamin, Race After Technology:Abolitionist Tools for the New Jim Code, Polity Press, 2019. 285 pp. £14.99 (PB). ISBN-13: 978-1-5095-2640-6.
In June 2020, the Undercover Policing Inquiry will begin to hold public hearings relating to the activities of SDS managers and officers. With this event in mind, this review draws on Ruha Benjamin’s Race After Technology in support of the argument that the inquiry’s management of the data it holds (which documents the surveillance methods used against thousands of private citizens) is likely to undermine its stated aim of “getting to the truth of undercover policing”. Focusing on two categories of inquiry decisions made over an approximate two-year period, the review highlights the ways in which the inquiry has reproduced aspects of the very techniques that undercover policing units deployed against private individuals involved in anti-racist/anti-capitalist and family justice campaigns.
Policing Legal Rights. A Review of Aziz Choudry (ed.), Activists and the Surveillance State: Learning from Repression, Pluto Press, 2019. 264 pp. £29.00 (PB). ISBN: 978 0 7453 3780 7.
This review argues that in many liberal democracies, including the UK, it is now openly accepted that the maintenance of a border between lawful and unlawful conduct is not the sole (or even the primary) purpose of policing.
The Work that Inquiry Core Participants Do. A Review of Alistair Stark, Public Inquiries, Policy Learning, and the Threat of Future Crises, Oxford University Press, 2018. 200 pp. £60.00 (HB). ISBN: 978-0-19-883199-0.
Drawing on examples from the Inquiry into the Grenfell Tower Fire and the Inquiry into Undercover Policing, this review argues that without the active support and involvement of ordinary members of the public, public inquiries cannot achieve their objectives.