Did undercover climate officer go native?

10 January 2011 by

In a plot worthy of a Hollywood film, the trial of six environmental campaigners charged with conspiring to shut down a power station has apparently collapsed after an undercover police officer switched sides.

According to the BBC:

The six were charged with conspiring to shut down the Ratcliffe-on-Soar power station in Nottingham in 2009. The case was due to start on Monday, but was abandoned after Pc Mark Kennedy contacted the defence team to say he would be prepared to help them. The prosecution subsequently dropped their case. Mr Kennedy had been intimately involved in the green movement since 2000.

Prosecuting environmental campaigners who seek to damage or disrupt the businesses of alleged polluters is proving to be difficult. Last week Rosalind English posted on the case of the “Ratcliffe 20”, who were spared imprisonment for their planned attack on the same power station. In his sentencing remarks, the judge in the case sympathised with the protesters’ cause, and said he had “no doubt that each of you acted with the highest possible motives. And that is an extremely important consideration.”

Following the case, Eleanor Coombs argued in a guest post that the time has come for a “radical re-think about how we frame our laws to reflect our concern as a society about climate change and its impact on future generations”. See  also the interesting discussion in the comments section to that post.

The limits of the “necessity” defence to criminal damage and other related offences (see Obiter J’s discussion of the defence) is certainly being stretched by the series of recent environmental protester prosecutions, as well as others relating to political activists.

As to the entrapment aspect of the case, which is also controversial, Obiter J reminds us that questions can arise relating to “entrapment” or to whether evidence was obtained “unfairly” and, as a result, should be excluded under the Police and Criminal Evidence Act 1984 s.78, which provides for the exclusion of unfairly obtained evidence. Obiter J points out:

R v Smurthwaite and Gill 1994 involved “Solicitation to Murder.”The Court of Appeal looked at the application of PACE s.78 to police undercover operations.  Police officers had posed as “contract killers” and had secretly recorded conversations they held with those soliciting murders.  The Court of Appeal upheld the convictions given that the recordings showed that it was the offender who had made the running and that the officer had taken a minimal role in the planning and had not sought to persuade the offender to commit the offence

We will never know whether the police officer’s conduct may have rendered the evidence obtained unfair. The fact that the CPS appear to have withdrawn the case following enquiries as to PC Kennedy’s role by the defendants’ lawyers could relate more to his offer to give evidence for the defence than to any doubts as to entrapment.

It is highly unlikely that this run of cases will lead to any formal protection for environmental activists who damage or trespass on property. This would amount to endorsing private individuals to breach others’ property rights, which is a slippery slope. Whilst such an approach could be ethically justifiable, it is surely for the state to decide, taking a broad view, when environmental concerns trump private rights, as it does regularly when passing environmental laws.

In any case, with undercover police officers and judges showing sympathy for  the cause, protesters may have all the protection they need.

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  1. merrick101 says:

    Just to be clear, there is no firm evidence Kennedy switched sides beyond the word of the long-term liar himself (it’s notable that he worked for the police and private spies until discovered, and then gave no significant information not already known – hardly the actions of one who’s seen the light).

    More importantly, the trial did not collapse because he was helping the defence. He had withdrawn his initial, tentative unspecific agreement to help.

    The trial collapsed because the defence insisted that Kennedy must have made reports and demanded to see them. Rather than disclose this evidence, the Crown chose to fold the case.

    So, it was Kennedy’s obedient serving of his superiors that was the vital ingredient, not his helping the protesters. The opposite of the ‘cop who turned’ narrative. But given such a Hollywood narrative, the mainstream media can’t help themselves.

  2. ObiterJ says:

    Many thanks for the links to my post on this interesting
    situation which has quite of lot law in it. The solicitor for the 6
    who would have been on trial is reported as saying: “Serious
    questions must be asked relating to the policing of protest, from
    the use of undercover officers, to the use of expensive and legally
    questionable mass pre-emptive arrest of protesters, to extremely
    restrictive pre-charge bail conditions, to the seemingly arbitrary
    nature by which the 114 initially arrested were reduced to the
    final 26 who were eventually charged.”
    Could not really do justice in short posts on a blog to subjects
    such as “necessity as a defence” and “abuse of process” and
    “exclusion of evidence” but it was good to be able to highlight by
    way of brief summary some of the legal issues involved.

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