Repost from Campaign Opposing Police Surveillance
6 March 2016
How much of the public inquiry into undercover policing will be held in secret? How much of the police’s information will be revealed?
Later this month, the inquiry is holding a crucial preliminary hearing on disclosure. It will take oral submissions which, in addition to written representations, will be considered before taking a decision.
Tamsin Allen is a partner at Bindman’s and one of the lawyers representing political activists targeted by Britain’s political secret police who are ‘core participants’ at the inquiry. She represented victims of phone hacking at the Leveson inquiry and was Lawyer of the Year 2014 in Media & Information Law. She explains what the forthcoming hearing is about and what we can expect.
Important upcoming hearing.
On 22-23 March, the Undercover Policing Inquiry will hear submissions in relation to the legal principles to be applied to applications for s.19 Restriction Orders. This dry-sounding hearing is possibly the most crucial of the seven preliminary hearings and will effectively determine whether we are to have an open and public inquiry (with only minimal restrictions, strictly justified), or one held almost entirely behind closed doors.
The starting point for a public inquiry is that all the evidence provided to the Chair and considered for the purposes of his report should be available to the public and hearings should be open to the public. However, there is a mechanism (under s.19 of the Inquiries Act) to apply to the Inquiry for an Order that certain information should be kept secret.
There are limited grounds on which such an application can be granted – in summary they are because it would breach domestic or European law or damage a recognised public interest to make the information public, or it would conducive to the Inquiry fulfilling its terms of reference for certain information not to be revealed. Public interest immunity can, in some circumstances, also be invoked.
Secret or not, that is the question
The Inquiry is created by a statute and, unlike when sitting as a High Court Judge, the Chair only has the powers he is given by the statute. So, every piece of information that the police want to keep secret has to be the subject of an application and the application has to be justified by reference to one of these criteria. There will need to be convincing evidence provided to the Inquiry in support of applications. The Chair cannot go beyond the grounds for restriction orders and prevent evidence from being heard in public just because it is convenient, or because the police say they would like it.
In theory, an Inquiry can be held totally in open, or almost totally in secret, providing the evidence is all provided to the Inquiry itself and any restrictions on public evidence are properly justified. There are many variations in between and Inquiries will sometimes disclose evidence to some Core Participants but not others, or to Core Participants (CPs) on the basis of confidentiality undertakings.
As an inquisitorial body, its responsibility is to assess the evidence and report back. It has to act fairly, but it doesn’t have to allow anyone else to view the material providing there are good grounds for making restriction orders.
However, given the enormous public concern about the behaviour of undercover officers deployed in political and social justice campaigns, a secret inquiry would be plainly be a travesty. Many CPs have indicated that they would not co-operate with the Inquiry in those circumstances.
The police however are asking for just that. They say that their practice of neither confirming nor denying any information about undercover officers is so important that it constitutes a public interest which should take precedence.
The non police/state CPs are finalising their positions, but they will certainly contest that position, and say that the practice is not itself a public interest, and any public interest in protecting officers from harm, or protecting important secret methods of undercover work can be dealt with in other ways.
No actual applications for anonymity or other restrictions will be dealt with at the hearing, and there will be no evidence. The chair is keen to ensure that the arguments focus solely on legal principles. But these are very important principles for the future of the Inquiry.
The Inquiry could decide to mirror the neither confirm nor deny approach – which would tie its hands in determining future applications for anonymity. Or it could decide that each application for a restriction order should be dealt with on its merits and be strictly justified, in which case the public and the victims of undercover police misbehaviour would be able to argue that their own rights to find out what happened to them should be considered and to challenge decisions if they considered that they were not properly made.
The hearing will decide how the Inquiry proposes to approach applications for restriction orders, but it is not necessarily an end to the matter. The decision could be challenged by way of judicial review if there are grounds to do so. And the same goes for the individual decisions on applications.
Although the Inquiry itself is an inquisition, the battle-lines between the Police and Home Office and the other CPs have been drawn.