Legal challenge to the Undercover Police Inquiry — will it succeed?

10 July 2018 by Rajkiran Barhey

It was reported on Thursday, 5 July 2018, that three core participants in the Undercover Policing Inquiry are intending to launch a legal challenge against the Home Secretary’s decision not to appoint a panel to sit with the Chair, Sir John Mitting.

They say a diverse panel is needed who will better understand the issues of racism, sexism and class discrimination that the inquiry will inevitably raise. So where has this challenge come from, and is it likely to succeed?

Background

Three years ago, Home Secretary Theresa May announced the establishment of the Inquiry, amid great controversy concerning the conduct of undercover police officers over a number of decades. Lord Justice Pitchford was appointed as chairman, but as a result of ill-health, he had to step down in 2017 and was replaced by Sir John Mitting (a judge of the High Court).

Mitting J has experience of surveillance and the security services, having been Vice-President of the controversial Investigatory Powers Tribunal and Chairman of the Special Immigration Appeals Commission.

However, his chairmanship of the inquiry has been mired in dispute, starting with a series of decisions to grant anonymity to many officers because public disclosure of their real names would breach their Article 8 rights to private and family life. Some had also raised concerns about Mitting J’s membership of the all-male Garrick Club.

Compounding matters, at a hearing on 5 February 2018, Phillippa Kaufmann QC, counsel for the victims (who had core participant status at the Inquiry), made the point that it was impossible to rule out wrongdoing, including deceptive sexual activity, on the basis of an individual’s personal or family circumstances. Mitting J responded:

Of course it is impossible to rule it out, but you can make a judgment about whether or not it is more or less likely. We have had examples of undercover male officers who have gone through more than one long-term permanent relationship, sometimes simultaneously. There are also officers who have reached a ripe old age who are still married to the same woman that they were married to as a very young man. The experience of life tells one that the latter person is less likely to have engaged in extramarital affairs than the former.

The comments were not well received and, later in the hearing, Mitting J acknowledged that he “may stand accused of being somewhat naive and a little old-fashioned” but that he would “own up to both of those things” and would take it into account and revisit his own views.

The Walk-Out

At the next hearing, on 21 March 2018, Ms Kaufmann made a number of submissions criticising the inquiry:

The first concerns the failure to ensure that the Inquiry is heard by exactly that, a panel representing a proper cross-section of society and in particular — and this is absolutely essential for reasons I’m going to come to — including individuals who have a proper informed experiential understanding of discrimination both on grounds of race and sex. Two issues that lie absolutely at the heart of this Inquiry. I’m sorry to say this, but instead we have the usual white upper middle class elderly gentleman whose life experiences are a million miles away from those who were spied upon. And the very narrow ambit of your experience is not something I’m simply creating out of thin air. It has been exemplified already in the way that you have approached these applications.

She then referred to Mitting J’s comments at the February hearing and concluded by inviting him to either recuse himself or appoint a panel to sit alongside him. She then walked out of the hearing, accompanied by her legal team and the core participants.

The Strategic Review

Partly as a response to the impasse that the Inquiry had reached, Sir John Mitting carried out a Strategic Review. He ruled out the appointment of a panel for the entire inquiry on the basis that it would

impose a heavy cost in both time and money – the plans set out in the strategic review could not be achieved within the already lengthy timeframe envisaged.

Nevertheless, he concluded that a diverse panel would be desirable at the the third stage of the Inquiry, devoted to the examination of current undercover policing practices and of how undercover policing should be conducted in future.

The Present Situation

It is against this background that the present legal challenge has emerged. It is being brought by three individuals who were part of groups infiltrated by undercover officers. They have set up a Crowdfunding page to raise funds and intend to apply for permission for judicial review of the Home Secretary’s decision to refuse to appoint a panel. If permission is granted by a judge, they will be able to progress to a full judicial review.

At the moment, we do not know how the legal challenge will be framed. However, there is one previous case in which the same issue has arisen which could provide some guidance.

The Grenfell Tower Inquiry Case

In R (on the application of Daniels) v May [2018] EWHC 1090 (Admin), Lord Justice Bean and Mr Justice Edis considered a legal challenge brought by the son of a victim of the Grenfell Tower fire. He challenged the Prime Minister’s decision to refuse to appoint a panel to sit alongside the chairman, Sir Martin Moore-Bick, for Phase I of the inquiry. This was discussed by Suzanne Lambert on this Blog here.

The main argument made on Mr Daniels’ behalf was that the Prime Minister had failed to accept that the need to maintain public confidence in the inquiry was the key factor in promoting the statutory purpose of the Inquiries Act 2005.

Mr Daniels argued that the entire purpose of the Act was to ensure that there was public confidence in the outcome of an investigation into matters of public concern. It was not simply a factor that should be taken into account and therefore it could not be outweighed by other considerations. Thus, in deciding whether to appoint a panel, the Prime Minister should have kept at the forefront of her mind the need to maintain public confidence, and it was clear from the views expressed by the victims of the fire that they did not have confidence in Sir Moore-Bick.

The court disagreed, however. It was held that section 8 of the Act only identifies two considerations which must be taken into account in the appointment of a panel: (1) impartiality and (2) expertise. Impartiality was not an issue. As to expertise, the court found that it was rational for the Prime Minister to conclude that Sir Martin Moore-Bick did have the requisite expertise, particularly taking into account that he would have the benefit of help from assessors (usually experts, but not of the same status as panel members)

As to diversity, the court looked carefully at the wording of section 8 and concluded that, if an inquiry panel is appointed which includes a chair and other members, then balance must be considered in deciding on the composition of that panel. But, importantly,

section 8 does not state that a panel consisting of a chairman and other members is more desirable in the interests of balance in the diversity sense than an inquiry panel consisting of a chairman alone.

The court went on to say that whilst the views of the fire victims and family members were a relevant consideration, it was up to the Prime Minister to decide how much weight she wanted to place on that consideration, and the court could not interfere with that decision.

The claimant also tried to make a human rights point, relying on the state’s duty under Article 2 (the right to life) to hold an effective investigation into deaths. The court rejected this point stating that Article 2 requires the state to hold an impartial, independent and effective investigation, but it does not require the investigation to be carried out by any particular person.

Ultimately, the court asked itself whether it was rational for the Prime Minister to appoint Sir Martin Moore-Bick and found, taking everything into account, that it was.

In concluding, the court also referred to the desirability of ensuring that the inquiry could produce an initial report on Phase I reasonably quickly, which would establish how the fire started and make recommendations to prevent another disaster. The court was careful to limit its decision to Phase I of the inquiry, saying that, at later stages of the inquiry, different considerations might apply.

Conclusions

At first blush, it may not seem that the claimants in the Undercover Policing Inquiry challenge have much chance of success. However, compared to the Grenfell case, they have a foundation on which to allege that Sir John Mitting does not have the expertise to head this inquiry.

In the Grenfell case, the only real problem with Sir Martin Moore-Bick that the claimant could point to was that the victims of the fire were uneasy with the appointment of a person who seemed very far removed from the life experiences of the victims. But there was no evidence that Sir Martin had said or done anything in particular to lend credence to these fears.

In the present case, however, Sir John Mitting’s comments provide a more solid basis on which to object to his level of expertise. Of relevance, in my view, is the fact that the comments were made in an inquiry hearing, rather than in an external context. On the other hand, it must be acknowledged that he plainly has a great deal of expertise at dealing with issues of national security, surveillance and policing.

It is inherent in the judicial role to adjudicate upon disputes between people who may or may not have a similar life experience to the judge and there is a multitude of examples of judges who behave with a great deal of empathy towards people in completely different situations to themselves. Sir William Macpherson, who led the inquiry into the death of Stephen Lawrence, is a good example.

Nevertheless, particularly in the context of a public inquiry, there is an argument that public confidence is paramount, and such confidence is unlikely to exist if the core participants feel that the head of the inquiry has no understanding of what is at stake.

Rajkiran Barhey is a pupil barrister at One Crown Office Row.