Sir Hugh Orde Speech to Liberty
Monday 7 February 2011
UNDERCOVER POLICING AND PUBLIC TRUST
Public trust has always been at the heart of the British model of policing. In many ways its intrinsic nature is what was unique, in history and throughout the world.
The uniqueness lies in a vision of policing that is effective, not through coercion, but through consent, built not from fear but from public cooperation. By the conscious design of men such as Sir Robert Peel and the first Met Commissioners, Charles Rowan and Richard Mayne, the police themselves should have to act in such a way that secured and maintained the approval, respect and affection of the public. They would therefore be professional in character, independent of any special interest and above all, accountable. Accountable to the public we serve and to the rule of law.
As the late Sir Robert Mark said: “The fact that the British Police are answerable to the law, that we act on behalf of the community and not under the mantle of Government, makes us the least powerful, the most accountable and therefore the most acceptable police service in the world.” (1)
Though the ideas of the policing pioneers are part of the origins, history and traditions of British policing, they do remain as real as ever to the men and women in the police service today as they did in 1829. They are why our model of policing remains much admired and imitated abroad. They are why we remain a largely unarmed service; why we place such importance on familiar, visible, neighbourhood policing, which builds confidence and reassurance in everything we do.
It resonates throughout the way we deliver our public service: to give an example in the daily routine, it is why we prefer single patrolling whenever possible so that police officers may talk to the public rather than merely a companion.
It is why we continue to embrace accountability in all its forms. So that when something goes clearly wrong, in the British policing model we do not step back. We confront hard truths, we find answers, learn lessons and seek to improve our service to the public.
We recognise clearly that we operate within a changing social context where public and political criteria for some policing tactics have changed. And unfortunately, it is in the nature of policing that mistakes will occur. It is without question that we sometimes get things wrong. We would not be here today had something not gone wrong. In the background is the case of a police officer who spent several years posing as an environmental campaigner, built relationships with several women, who seems to have held allegiances both ambiguous and conflicted. These reports have raised questions around proportionality, have placed doubts around a police tactic that, although high-risk, is absolutely critical to keeping the public safe; and, without question, have damaged public trust in the police service, as cases do from time to time.
I am not going to speak today directly about the case of PC Mark Kennedy. The circumstances around this case are rightly the subject of three reviews, of very different kinds, each looking at specific aspects of the questions which arise. However, I do want to address some of the points about this specific area of policing, around accountability in general and about our related transparency.
Firstly, to get some common understanding it is worth clarifying the various reviews which are underway:
The Independent Police Complaints Commission is undertaking an independent investigation into the alleged failure by Nottingham Police to disclose relevant material to the Crown Prosecution Service in the case of six environmental protesters whose trial collapsed at Nottingham Crown Court on 10 January 2011. This is one way we are accountable to the law, and to the public – through the courts.
Her Majesty's Inspectorate of Constabulary is carrying out a review of the operational accountability of undercover work conducted by the National Public Order Intelligence Unit – until recently under ACPO, and now with the met - and how intelligence activity is authorised in accordance with law, including consideration of the proportionality of covert tactics. This is another way we are accountable to the law, but also to our public.
The Serious and Organised Crime Agency is independently reviewing the actions of PC Mark Kennedy to identify whether they were consistent with those authorised for his deployment, and if found to be inconsistent, to report upon the nature and the seriousness of the breach. It will also seek to establish if the management and records relating to his overall deployment against environmental extremism and in particular this investigation, were in accordance with the relevant codes and legislation and that appropriate records were made by the relevant authorities.
Let us be clear: the police service cannot operate effectively – it cannot fulfil its primary function to prevent and detect crime – unless it uses intelligence. The use of properly managed sources can offer significant access to the thinking and planning of criminals and criminal organisations. The direct source can lead to the very best level of information. Though costly, it can prove hugely cost-effective when set against the potential impact of crime and disorder. It can also offer intelligence and evidence that would not be obtainable through any other police tactic – for instance where criminals may be highly aware of - and adjust their behaviour to avoid - other forms of surveillance.
It is used against the highest echelons of criminality, where it has save lives, protect victims and brought offenders to justice. In my own experience in Northern Ireland, I took enormous care around authorising such operations. I wanted to be persuaded that there was no other tactic available - no option that would avoid placing the lives of police officers; and second, personal and organisational reputations at risk.
Yet without utilising this option in my judgment we would not have been so successful in a small but critical number of cases that without question had an enormous impact in protecting the public: preventing the procurement of a significant quantity of arms by dissident republicans, intercepting £7million worth of drugs coming into Northern Ireland in one year; arresting individuals involved in stealing the life savings from a vulnerable older member of the community in greater Belfast.
This is an area of policing which is specialist, high risk, and taken extremely seriously at the highest levels of policing. It is also subject to the law. The case law guidance, policy and training is extremely detailed in this matter. The police have an obligation to act in accordance with the European Convention on Human Rights, within which Article 2 requires the police to protect life, and other articles contain rights in relation to a fair trial and privacy.
It is understandable and entirely legitimate to question, as many have, the proportionality of this tactic when applied in circumstances where the people involved clearly do not fit the popular stereotype of a Mr Big – the organised criminal.
Again, the law, which goes back several decades, provides a useful reference here. The most recent, current Regulation of Investigatory Powers Act sets out how covert policing must be managed as well as defining roles, responsibilities and structures. It allows for undercover policing to be carried out within terms that (you may be interested to hear) are drawn to cover:
-the interests of national security
-the purpose of preventing or detecting crime or of preventing disorder
-the interests of the economic well-being of the United Kingdom
-the interests of public safety
-the purpose of protecting public health
-the purpose, more worryingly, of assessing or collecting any tax, duty levy or other imposition, contribution or charge payable to a government department
-any purpose specified by an order made by the Secretary of State.
One textbook on the subject, used by the Crown Prosecution Service and recommended by barristers, was written by an ex-police officer, now an academic, and his still-serving wife! (2)
Except in very limited circumstances currently, there is no external pre-authorisation of this form of intrusion- the level of authority by law rests at Superintendent rank. Within the police service we consider this specialist and high risk area of policing sufficiently important that our own guidelines, agreed through the Association of Chief Police Officers, state that a chief officer should authorise all undercover operations. That is, Commander, Chief Constable, or higher.
This is a point of contrast in the law with other forms of surveillance - for example the Secretary of State must issue a warrant to intercept communications. And except in urgent cases, intrusive surveillance - requires the consent of a Surveillance Commissioner (who must hold or have held high judicial office) to become effective. Pre-authority is required.
So in this area of policing the service has been left pre-event, to regulate itself, but is subject to post-event scrutiny from the Surveillance Commissioners. We take it very seriously, devote significant time to it and give it considerable thought. The Commissioners carry out an annual inspection and have access to materials relating to any authorisation they choose to look at.
But the fact that the case of Mark Kennedy is the first we are aware of where an undercover police officer has been exposed in the way he has been for a great many years, is an indication of the care that goes into such operations - in training, in planning, preparation and in welfare of officers involved. And it is worth noting this exposure occurred after PC Kennedy left the service, and chose to re-enter the arena in the employment of a private company.
This is very high risk territory. As a chief officer, you are placing trust in officers to act at arms’ length, out of sight and with autonomy within sensible parameters. That does not mean they have carte blanche. We do not look for James Bond wannabes: there is no ‘licence to thrill’. Officers may not attempt to entrap offenders or incite offences which would not otherwise have been committed. At all times the gathering and use of intelligence must be lawful, necessary and proportionate. But the nature of this work does mean that it is possible an authorisation of this policing tactic can be entirely correct, yet subsequently abused.
Also worth noting, there are physical, legal, psychological, political and moral risks for the officer deployed and for the service. The officers that are deployed are highly skilled, thoughtful and very, very brave.
It is also not difficult to imagine that there may be particular risks of compromise when the context for undercover police activity is not among individuals fitting a typical criminal profile but groups of protesters who may be intelligent, idealistic and passionate about a cause. Those people intent on crossing a line into unlawful activity may be a small nucleus within a much large group of people acting lawfully and peacefully with legitimate concerns.
In general, in policing protest, police officers know that they tread a fine line between facilitating peaceful and legitimate dissent - a hallmark of this society - and keeping the peace. They know that their every action will be scrutinised, held up to post-event analysis devoid of its immediate context, and potentially shared across the world in an instant. The public and political view of such protests will change if things go wrong and people are hurt, or conversely if things get out of hand, the police service may be accused of not having enough intelligence.
Partly in consequence, the typical attitude within the police service is about as far removed as it is possible to be from that which is customarily attributed to it by political activists, who assume that police officers will readily resort to use of force, sympathise with 'establishment' aims and generally look forward to a good scrap. The reality is that any protest which crosses the line into unlawful behaviour or violence of any kind, regardless of cause, is more typically regarded with weary distaste. We need to act and be ready with the best available information.
For the police service, there is no such thing as a hierarchy of moral causes. They are professionally disinterested: there are simply ethical and operational judgments to make in order to allow different groups of people to exercise their competing human rights in accordance with the law.
It is fair to say, I think, that policing has had to work hard to develop a mature understanding of its human rights obligations. In my own experience in Northern Ireland, the reforms implemented under the Patten Report placed human rights at the centre of the Police Service of Northern Ireland, putting us, at that time, in a unique position. Following the policing of the G20 protests in London in 2009, Her Majesty’s Inspectorate of Constabulary identified a need for more work to embed understanding across forces in England and Wales of human rights legislation. HMIC's report prompted a review of tactics and approach on public order, driven through the chief officers nationally who lead in that area through the Association of Chief Police Officers. The revised guidelines on public order include clear guidance on this particular policing discipline.
But I would challenge that the issues we are discussing today reveal a lack of understanding of human rights not so much on the part of the police, but in the public discourse around proportionality of police tactics at public protests. The Joint Committee of Human Rights considered the components of a human rights culture in a 2003 report evaluating the case for a human rights commission. As the committee pointed out:
"The rights of one person can easily impinge on another and each must therefore exercise his rights with care? a fair balance will frequently have to be struck between individual rights and the needs of a democratic society and the wider public interest." (3)
In the attitude bemoaned by critics of the Human Rights Act, the need for this balance is forgotten, with a sole emphasis on entitlement and none on personal responsibility for respecting the rights of others. The fault is not with the Act, but in the immaturity of the culture placed around it. The police are not permitted the luxury of sympathising with cause, nor with the fact that protesters may be, in the words used by the Judge at Nottingham Crown Court when sentencing those who had planned to shut down Ratcliffe-on-Soar power station: 'decent men and women with a genuine concern for others? you acted with the highest possible motives."
In this case, protesters intended to occupy and close one of the UK’s largest power stations. This is a major part of national infrastructure supplying power to millions of homes. Regardless of what the final cost or impact had they been successful may have been – facts which are disputed depending on perspective – this is neither lawful nor, it seems to me, is it the kind of action the public would expect the police to allow to go ahead.
The basic principle in respect of protests – and the one endorsed by Her Majesty’s Inspectorate of Constabulary – is that it is good to talk – a phrase I remember using at the home affairs Select Committee when talking on this subject. Confronted with groups of protesters who refuse to engage with police and whose aims and methods are unclear, it is hardly surprising that the police should seek other means to amass intelligence. We are obliged to act on the best information. The alternative to an absence of intelligence is the requirement to employ sufficient resource and tactics to protect the rights of non-protesters – be they people seeking to go about their business, recipients of electricity from a power station or parliamentarians.
When this goes wrong, we are rightly criticised sometimes, as I have said, for a failure of intelligence.
So, against this difficult and challenging backdrop, what needs to be done to ensure that a valuable and lawful tactic is deployed in a way that ensures the proportionality and legitimacy is fully considered and challenged, within a necessary legal standard, in circumstances where no other options are available to the police service to act.
It seems to me that the starting point may be no different as for any other tactic we deploy. The trigger rests with the operationally independent and responsible senior officer who currently makes the final decision without reference to the outside world. The current system of retrospective inspection is, in my judgment, no longer sufficient to secure the confidence of right thinking people that such interference with citizens’ rights (with its foreseeable collateral intrusion on many) is appropriate. Therefore the only solution I can see must take the form of some independent pre-authority that is already a common feature in other areas of policing in this country.
Indeed, on the back of the recent publicity, many references were made by commentators to the level of authority required for the interception of communications, the deployment of covert devices and the authority required to search private properties (with some exceptions).
The common theme with almost all these processes is the judiciary, serving or retired It is not for me to suggest the level or form but I do believe that an additional element of judicial oversight in keeping with our traditions of accountability to the rule of law, need not be over-bureaucratic and the benefit would far outweigh the additional administrative burden.
I am not talking here about low level examples of the use of undercover such as test purchases from the street corner drug dealer, but the far smaller number of cases of the type where public confidence issues may be engaged. This would further challenge our thinking and further ensure that full consideration is given to alternative less intrusive methods of operating. Indeed if considered as part of a review of RIPA, some lower level authorities could probably be made less burdensome to balance the load without reducing the oversight.
If this approach was accepted, it still, I sense, leaves one massive area of concern that has not yet been addressed. Namely the deployment by completely uncontrolled and unrestrained players in the private sector. I am surprised, bearing in mind the current debate around the alleged practices of some journalists, that there appears little public debate on this gaping hole in the intrusion of individuals human rights.
One of the many things I learned in Northern Ireland, and I learned many, was the importance of legitimacy as well as legality. The history of policing across the world tells us that the moment a police service breaks the law to enforce the law it is on the road to anarchy. But equally, the moment the police service loses its legitimacy it is in a very bad place.
The British Police Service operates because the overwhelming majority of the citizens support it. The evidence for this rests with the simple fact that 140,000 (and shrinking) officers police 64 million – and rising (people).
The reason I believe we have maintained a model of policing that currently remains the one most countries wish to learn from is because we are transparent as possible and we listen. We listen to concerns, we respond and we change. The very fact this debate is taking place today is testimony to that approach and long may it continue.
1. Sir Robert Mark’s Dimbleby Lecture, 1973
2. Covert Investigation (Blackstone's Practical Policing), Clive Harfield and Karen Harfield
3. JCHR, The Case for a Human Rights Commission, sixth report of session 2002-2003