Uncovering the truth about undercovers
Mike Schwarz (there was a no photography policy at June's LFB meeting, see below.)
JUNE'S London Freelance Branch meeting opened with two minutes' silence for the victims of the Orlando shootings. We heard from Mike Schwarz, a lawyer with Bindmans partners, who's representing many activists who were the victims of police undercover surveillance, some of those affected being journalists. Mike has previously advised the NUJ on other issues.
In particular, Mike is representing some passengers who were on the Fairford coaches - a fleet of coaches taking protesters to the Fairford bomber base in Gloucestershire back in the 2003 Gulf War, when it was expected bombers would take off from Fairford to bomb Iraq. The coaches were forcibly turned back by police, with protesters, drivers and journalists on board covering the protests all imprisoned on board all the way back to London. The journalists and others were detained on the Fairford coaches, it later emerged, despite possible "undercovers'" evidence which may have indicated that they need not have been detained.
"Pitchford" - the Pitchford Inquiry into Undercover Policing - has been going on since last year, says Mike. The whole Inquiry was originally "due to last three years" although Mike feels this is optimistic, as "even a year into" it's been mostly arguments about the legal framework of the inquiry so far. The actual business of hearing evidence might start as early as this autumn.
It's a "fully fledged public inquiry" which "the state, the Home Secretary didn't want," until "the Milly Dowler moment triggered it." The revelation that News of the World had hacked into the phone messages of murdered schoolgirl Milly Dowler caused such outcry that the phone hacking inquiry became inevitable. In a similar way, the public admission of "Baroness (Doreen) Lawrence spied on by the state" was the moment that "two parts of the state collide. Something had to happen."
Before that, says Mike, most of what we knew about undercovers came from the dedicated detective work of victims of undercover policing - activists and journalists - with Rob Evans and Paul Lewis in the Guardian and on Channel Four, and their book Undercover. Women activists uncovered "undercover relationships" with men they thought were their boyfriends, who had in at least one case fathered a child, but who turned out to have been undercover cops all along. A former partner discovered undercover officer Mark Kennedy with the help of Indymedia. The "endeavours of activists" working together with Evans and Lewis and other journalists have uncovered about "16 out of 150" undercovers so far. The police have still refuse to confirm or deny the identity of undercover police.
What followed next was that in 2010, six environmental activists were on trial for aggravated trespass at a coal-fired power station, their trial collapsed days before it was due to end when undercover police officer Mark Kennedy's involvement emerged. This "raised the profile" of undercover policing. There followed a "domino effect, more people investigated", undercover police officers were "uncovered by women affected by relationships." Undercovers were found to have been active in "family justice campaigns - (Stephen) Lawrence, (Jean Charles de) Menezes." As a result, to date there have been "50 convictions overturned" .
The Inquiry covers the period 1968 to date. In 1968, during Vietnam War protests, "a covert police unit was set up that became the Special Demonstration Squad" (SDS) with a mission to infiltrate protest movements. They became known within the Met as "the hairies" on account of the then fashionable countercultural hairstyles they adopted as camouflage. Mike related how over 40 years, from "1968 to about 2008, hundreds of individuals and organisations" were targeted by the SDS, before they were closed down and replaced by the National Public Order Intelligence Unit (NPIOU), with an estimated "150-odd undercover police" having been deployed with these units over that period.
Currently the Inquiry's dealing mostly with legal arguments about "how much anonymity and restrictions" will be allowed, as well as "who is going to be a Core Participant" (CP). Mike was able to tell LFB that the latest list "hot off the press today" has about 200 CPs, of which about 20 are "state", mostly individual police officers (all but a few so far identified only by the letter "N" followed by a number). Then there are "a whole load of other CPs, people affected" by undercover policing. Being a CP, a person or group with a stake in the Inquiry "just means you get an inside track, evidence in advance, a certain amount of leverage."
The CPs include "people affected by blacklisting" and by possible murky links between police and private security firms like the Consulting Association, with undercover police playing "some sort of role" we're not sure of yet. The National Union of Mineworkers (NUM) and construction union UCATT are thought to have been targets of blacklisting operations and undercovers.
Where do the journalists fit in? The NUJ applied for CP status, arguing that as other unions (see above) were targeted, there "must have been some undercover police" around the NUJ. But we "don't have - by definition - the evidence" of any such clandestine activity. Six Data Protection Act requests by journalists revealed that police had "gathered intelligence on them", the NUJ put this argument in an oral submission to the Inquiry last October, but, as Mike explained, the Chair ruled "there was no evidence of spying (by undercovers) on NUJ in particular. The Chair will keep it under review... To a degree, this is disappointing to the NUJ."
In the case of the Fairford coaches, the police "supposedly had some intelligence... that someone on board those coaches might be intent on causing violence." Passengers detained on the coaches (including some working journalists) brought a Judicial Review and sued the Met, Gloucestershire Police and several other police forces whose patch they passed through on the way to Fairford or whose officers were deployed as part of the operation to detain them. The plaintiffs won and got compensation. But what came to light was that there may have been at least two undercover cops in the operation. One is supposed to have been part of the group that organised the coaches. Another, suspected by other police of being predisposed to violence, turned out to have been an alleged undercover all along.
This fact was kept secret from campaigners' lawyers during civil proceedings, and also kept secret from some of the uniformed police, for the best part of ten years. This is, says Mike, "a measure of how insulated that unit seems to have been," to the point of "failure to disclose" in the courts.
On some of those coaches, there were freelance journalists who had an NUJ Press Card, who were reporting on the journey to the protests at Fairford. The "right of a journalist to faithfully report" was denied. While "those journalists do not have a seat at the table" via the NUJ, there may yet be an opportunity to "pick up the offer to keep this under review (made by the Inquiry Chair earlier, see above)... see if that door can be opened."
Article 10 of the Human Rights Act, freedom of expression and Article 11, right to protest and freedom of assembly, formed the basis of the successful Judicial Review of police conduct at Fairford. Mike emphasised that "what the journalists did on the Fairford coaches is completely legal," they were newsgathering. (The risk of inadvertently incriminating others is a concern for any CPs.)
David Hoffman, in the audience, said "there are hundreds of other Fairfords... People in prison" as a result of the activities of undercovers in campaign groups. (David is one of six NUJ members bringing a separate but related Judicial Review into "overt surveillance" by uniformed police of journalists at work.) Watch this space.
For reasons of client confidentiality and the protection of sources, this report was written under reporting restrictions agreed between LFB and the speaker and should not be relied on either internally or to others as an accurate or complete report of what was said or what is happening.
- NUJ videographer Jason Parkinson, also part of the Judicial Review being brought by NUJ members, reports that the film Press Freedom 3 - Domestic Extremist - is coming along nicely. The film is part-funded by LFB.
- This article was updated on 05/11/20 to correct a typo and to link to the live streaming of the Undercover Policing Inquiry, which had by then started. Mike Schwarz has moved to Hodge, Jones and Allen Solicitors. The Pitchford Inquiry has since the ill-health its first Chair the late Sir Christopher Pitchford become known as the Mitting Inquiry, now chaired by former High Court judge Sir John Mitting.