Kate Wilson outside the Royal Courts of Justice
As Kate Wilson’s epic case makes its way through the Investigatory Powers Tribunal, we delve in the legal arguments being made and their significance for everyone affected by the spycops scandal.
For the last ten years, Kate Wilson has been on a dogged fight for justice. Deceived into to a relationship by undercover police officer Mark Kennedy, she wanted answers.
Part of a group of eight women also deceived into relationships by spycops, she was granted an apology by the Metropolitan Police who sought to brush them off. However, where others were forced to settle, a single door was left open for Kate – the notoriously secretive Investigatory Powers Tribunal (IPT). It was a small chance, but she went for it anyway.
This week, her unique battle finally made it to court, coinciding with the second set of hearings in the Undercover Policing Inquiry, to which it provides a fascinating counterpoint. There has been some excellent media coverage of the case, highlighting evidence that has coming out, which we will not repeat here (The Guardian, Standard, Morning Star, The Canary) This article will explore Kate’s actual legal claim – and some of the surrounding context – in more depth.
TEN YEAR STRUGGLE
Kate has taking on the Metropolitan Police and exposing its institutional sexism. As anyone who has dealt with the police knows only too well, she was met with all the usual obstruction tactics. A full account of these is a tale in itself, and would take a book to recount properly. The short account is that this backfired on them, as it only made Kate more determined.
It is already common ground between all the parties that the relationships were unlawful and should never have happened. However it is the impact of the relationship that the Tribunal is, in part, being asked to address.
At first, the police claimed that because they had admitted that these relationships happened, the Tribunal did not need to consider any evidence about them; they could keep secret just who knew, and how they knew, about the various spycops’ sexual relationships. Kate successfully argued against that – the Tribunal could not possibly determine the extent to which her human rights were breached without looking at the evidence.
When that didn’t work, the police switched tactics – using outright denial, twisting and changing their story, ignoring court orders and abusing legal processes (for example, serving things late or chaotically). They admitted things but then withdrew their admissions, showing utter contempt for the court. As one observer put it, it was a ‘defence by malicious incompetence’.
That lengthy process took more than two years and priced Kate out of legal representation. Undeterred, she took on the case herself and continued fighting, later gaining a team of pro bono lawyers from Freshfields Bruckhaus Deringer. It has culminated in this week’s hearing.
This case is about wider issues than just the relationships of one disgraced undercover. It is about challenging the culture that led to the undercovers abusing women in this way, while their bosses turned a blind eye – the institutional sexism at the heart of their system.
It is also emblematic of a wider disdain for the rights of people who engage in protest. These units viewed everyone politically active as extremists and this viewpoint allowed them to casually strip them of their privacy. The National Public Order Intelligence Unit (NPOIU, 1999-2011) and the Special Demonstration Squad (SDS, 1968-2008) defined extremism so broadly that the notion of ‘collateral intrusion’ on innocent people adjacent to true targets became meaningless – almost everyone was considered fair game in their world.
TAKING SPIES TO THE SECRET COURT
However, just as this is not a standard court case, this is not your standard court either. The case is being held in the Investigatory Powers Tribunal (IPT) – a body created under the Regulation of Investigatory Powers Act (RIPA), which since 2000 has been the framework for undercover policing including the authorisation regime.
The IPT does not try cases as such, rather it looks at human rights claims arising under RIPA with a view to improving the regime. Importantly, however, it can make findings of fact.
The IPT is a secretive court, that makes its own rules, though it is clearly a judicial proceeding. The IPT is so secret that it won’t even say how many cases it hears, but it has numbered in the thousands and is only known to have ruled against the state once.
Although the IPT tries to follow established practice, if it wants, it can hold hearings entirely in secret, and a barrister is appointed to kind-of-represent the interests of the person bringing the claim. The person making the claim often never sees any of the evidence, and it is left entirely to the IPT’s discretion whether it even takes up a case.
The strength of Kate’s case – and her perseverance – allowed her to turn much of that on its head. The disclosure she has received is genuinely unique. The police have been forced by the IPT to turn over a great deal of evidence to her, including Kennedy’s own pocket notebooks and contact logs, and previously confidential NPOIU documents.
Days 1 and 2
The hearings opened with Charlotte Kilroy QC speaking on behalf of Kate Wilson. For two and half days she spoke solidly, taking the Tribunal through the evidence and multiple legal arguments.
Held at the Royal Courts of Justice and broadcast live online, the scene was striking, with boxes of evidence and arguments piled so high most could not see the faces of the three judges – Baron Boyd of Duncansby, Professor Graham Zellick and Lady Justice Natalie Lieven.
SO WHAT IS KATE ARGUING?
Under the terms of RIPA, the IPT looks at human rights violations by the likes of the police and Secret Service (MI5). Any claim must be framed in that context.
Her case has many angles. The most prominent one is that she was deceived into a relationship by Mark Kennedy and this was a gross breach of her rights. Even the police have accepted this – that the relationship was breach of her Article 3 human rights, her right not to be subject to inhumane and degrading treatment or torture. This is an absolute right that no circumstances can justify breaching.
Lord Boyd of Duncansby
With that also came a breach of her private life and that of her family and friends (Article 8). Kennedy made himself an integral part of her life for several years, furthering the abuse of her trust. Central to this is not the degree to which she and Kennedy had a relationship, but the degree to which this was encouraged and condoned by the unit that ran him – the National Public Order Intelligence Unit (NPOIU) – and their reasons for doing this.
However, Kate’s case is not just about Kennedy. Multiple undercovers intruded and reported on her over a decade of political activism. They too interfered in her private life, and also her right to protest.
She and her friends, and the other women deceived into relationships, were being targeted because they were exercising their rights to free speech and assembly (Articles 10 & 11). Once you look at the bigger picture, it becomes impossible to separate the relationship from the reason why Kennedy and the other undercovers were in her life in the first place.
This is where we get into the much wider aspects of the case, that the entire targeting of her was part and parcel of that abuse, and Kennedy’s spying has to be seen in the context of all those other undercovers. When you look at things this way, questions emerge not just about Kennedy’s operation but about all of the NPOIU’s activities.
STAND UP FOR YOUR RIGHTS
Under the European Convention on Human Rights, most of these rights are ‘qualified rights’. There are no possible exceptions when it comes to Article 3 rights (freedom from torture etc) but there are some for Articles 8, 10 and 11. This means governments are allowed to interfere with those rights, but must provide some justification for doing so.
For that justification to be lawful, it must be shown to be both necessary and proportionate. Kate has challenged the police to provide evidence that these undercover operations were necessary and proportionate. She argues that if they cannot provide such evidence, these operations may not have been lawful at all. Thus Kate’s case includes the assertion that the authorisations of Kennedy’s deployment, and thus the entire operation, not just aspects of it, were unlawful.
And further, when you factor in the interference with so many rights, there emerges a case that the legislation under which those authorisations were made failed as a reliable legal framework protecting individual’s rights.
Finally, Kate has pointed out the institutional sexism that lies at the heart of the police. This is not the sole cause of her human rights being breached, but has certainly exacerbated them, for her and all the other women wrongfully targeted for relationships. She is arguing that the way abuses discriminated against women should be taken into account when considering the other breaches, and a finding made on it as well. (Article 14: protection from discrimination).
As part of this legal argument there is an important concept of ‘positive obligation’. A substantive part of the legal discussion at the hearings is the degree to which they police were required to be proactive in protecting Kate from these violations of her rights. How this plays out varies from right to right, but comes down to who knew and what was the regime in place to protect her – and that means looking at the evidence around training and guidance, and structures of oversight and supervision, including the degree to which there was an embedded culture of sexism within the units which turned accepted the acts of Kennedy and his colleagues.
WRINGING THE EVIDENCE OUT OF THE POLICE
Assistant Commissioner Sir Stephen House
There have already been some notable successes in this case. One of these was an acknowledgement that to understand the severity of the human rights breaches the facts needed to be known.
At first the police tried to control this narrative and keep hold of the material, rather than releasing it to Kate. They produced a statement (signed off by Assistant Commissioner Sir Stephen House) giving their interpretation, based on a limited review of material they had gathered.
The statement was readily debunked as ineffective and flawed. Kate kept up the pressure, saying it was not good enough, and the IPT agreed. Bit by bit she forced the the police to surrender material to her. First came contact and decision logs for Kennedy’s case and internal reviews of his operation. Then authorisations for the undercovers and NPOIU intelligence reports.
Even these small samples were damning and opened the door for further requests. Unsurprisingly, the police did their best to prevent this disclosure. They ignored Tribunal orders, or deliberately misinterpreted them.
Another tactic was to make concessions on the case, claiming that meant there was no need for evidence. When that did not work, they withdrew the concessions, trying to blame their previous lawyers for having made admissions. It was disruptive and frustrating, but they underestimated Kate’s tenacity.
She was able to show that it was not just Kennedy she needed answers about, as there was a pattern of intrusion and spying on her life. For instance, there was the question about how Kennedy’s undercover predecessor ‘Rod Richardson’ had spied on her. Or how much did Kennedy’s contemporaries ‘Marco Jacobs‘ and ‘Lynn Watson‘ know about his many relationships?
This brought more disclosure, about other undercovers, such as Jim Boyling and Rod Richardson, who had spied on her as early as 1999 – years before Kennedy was deployed.
From all the material, it was obvious the right to privacy meant nothing to them; Kennedy filtered nothing out and his bosses appear to have said nothing. It was also painfully clear from the logs that anyone reading them would have been well aware that Kennedy and Kate were in a relationship.
As Kate puts it:
Disclosed #spycops cover logs contain more than 30 references to Kennedy staying with me in my parents’ home, moving in together, and time alone, not protest, or campaigning or crime, just ordinary activities. Kennedy’s handler records that Kennedy gives my name as his “next of kin”.
The evidence, particularly the contact logs that document Kennedy’s continual reports to his ‘handler’ officer, are a goldmine of information about these operations. Although limited, and hampered by the fact that much material (particularly from the key period when Kennedy began the relationship) has apparently been lost or deliberately destroyed, they nonetheless give useful insight into the units.
WHO ELSE KNEW?
It has been possible to build up a bigger picture using Kate’s own memories and those of her fellow campaigners, and other women targeted by the spycops.
NPOIU officer ‘Rod Richardson’, Mark Kennedy’s predecessor, also spied on Kate Wilson
Kennedy had one cover officer, known by the cipher EN31, for the entirety of his deployment. The police have admitted that this cover officer must have known about Kennedy’s many relationships. However, EN31 denies this and has refused to cooperate with the police in this case.
It has become abundantly clear that there were multiple officers in close proximity to Kennedy, who were aware of his activities. Though there is no explicit mention of relationships in any of the documents disclosed, anyone reading them would have been immediately aware that something was going on.
As the picture built up, other players came into view: the heads of the NPOIU undercover units and their deputies; cover officers for other undercovers such as Lynn Watson; Nottinghamshire Special Branch.
According to Sir Stephen House, none of these people knew anything. But the contact logs and other material demonstrate otherwise. For instance, it was policy for these logs to be sent to the unit’s managers every week. They were written to be read by others – including messages left in the logs for the Senior Investigating Officer to read. This puts the lie to the police’s position that Kennedy was a ‘rogue’ operator – it is clear, as Kennedy himself told Parliament, that they knew what he was doing at all times.
The cover logs are damning. The Police try to claim senior officers didn’t read the logs. That is not borne out by the evidence – throughout the logs there are personal notes to the Senior Investigating Officer, including the problem of me wanting to meet MK’s mum.
Likewise, part of the police case has been that the undercover unit was a silo, kept discrete from even the rest of the NPOIU. But, again, this is demonstrably untrue.
And what of all the other material? The logs and intelligence reports show that campaigners’ relationships were regularly reported as a matter of course by the undercover and it was deemed important enough to be circulated onward? Yet not one of Kennedy or the other undercovers’ relationships appear in the material. The more one looks at that side of things, the more it is obvious something was amiss. It’s hard to be definitive, but it appears that any such material was being suppressed – ‘sanitised’, as they put it.
As Kate’s barrister, Charlotte Kilroy QC, argues there was a cultural practice of ignoring relationships deeply embedded in the unit, treating them as a given though not to be mentioned.
The police have relied heavily on there being a supposed prohibition on sexual relationships, but are unable to point to any concrete proof of this, other than general regulations against criminality and a duty to respect human rights. They claim that because they now accept sexual relationships are an abuse of Article 3, that means that must have always been the case. Plus, they argue, there are a some bits of circumstantial evidence in their favour, such as the denials of an undercover trainer, and a supposed role-playing exercise in the training given to undercovers.
Kilroy has ably unwound their dubious logic. For example, while there was an explicit prohibition on using drugs for the period in question, no equivalent guidance existed for sexual relationships (since the undercover policing scandal broke ten years ago, a more explicit prohibition on sexual relationships has been made police policy). And it didn’t appear to apply to the NPOIU’s sister unit, the Special Demonstration Squad, which spoke of ‘fleeting, disastrous relationships’ forming part of an undercover’s ‘tradecraft’.
The Tradecraft Manual shows that although it may have been suggested that #spycops sexual relationships should be “avoided” it was not said that they should never happen. Viewed alongside what happened in practice, relationships were not fleeting, although they were disastrous.
The importance of this was it showed there was no real prohibition on sexual relationships worth its salt within the undercover policing units.
Kilroy also set out the cultural context around Kate’s case in two ways.
The first of these entailed exploring the obvious parallels with other undercovers’ deceitful relationships. Clearly both Lynn Watson and Marco Jacobs knew of Kennedy’s relationships, and Jacobs had his own. There seems to have been a culture of accepting these relationships, viewing them as unremarkable. Plus, there was a certain amount of cultural crossover between the Special Demonstration Squad and the NPOIU, the former unit clearly having a culture where relationships was permitted.
Police deny widespread indifference or encouragement for MK’s sexual relationships. But they also acknowledge that, by its very nature, a culture of sexism may not get written down. They have not investigated or presented any #spycops bosses as to be witnesses.
The second of Kilroy’s examinations of the culture concerned the ways in which the structures of these undercover policing units made them institutionally sexist. There were no proper monitoring systems. Training was inadequate, and supposedly relied on oral prohibitions, for which evidence is limited, to put it politely.
There was no acknowledgement that prolonged deployments increased the risk of such dishonest relationships occurring, as well as the likely impact on the women deceived in this way (for example, pregnancy, or lies about intentions). The spycops were content to manipulate these women, disregarding their dignity. The fact that these relationships were known about for many years in the SDS itself reveals a discriminatory attitude towards women and their rights.
Charlotte Kilroy QC
Kilroy also criticised the regime under which undercover police operations were authorised. According to RIPA and related regulations, senior officers had to sign off the deployments. Deployments had to be justified, necessary and proportionate. Her line of attack was to ably demonstrate that the arguments for necessity in the authorisations simply were not met and inadequate.
The first authorisations made out for Mark Kennedy did not name specific individuals or organisations to target, as they should have. Instead, he was sent into Nottingham’s Sumac Centre, a community centre used by a wide variety of groups – it was a fishing trip to gather ‘pre-emptive intelligence’. A list of groups which used the centre is provided in in support, but is clearly spurious. It includes what is described as the ‘extreme left wing’ Stop the War Coalition.
Kilroy was able to demonstrate the excessive breadth of the authorisations, which essentially deemed everyone a potential target for spying.
Stop the War is listed, described as a “traditionally extreme left wing” movement. It then talks about the massive demonstrations in London attended by millions of people and peaceful demonstrations that took place in Nottingham. This is what #spycops target as “extreme”.
Once in place, the authorisations were self-perpetuating justifications – Mark collected intelligence and once that started that was deemed sufficient in itself. There were no objectives by which it could be measured, something the police’s own internal reports acknowledge. Mission-creep became a feature, his deployment extending to cover campaigns across Europe that had no bearing on the UK. Criminality was no longer the main reason given but replaced by purely policing resource arguments. Justifications move on to merely protecting his ‘legend’.
Within the authorisations, when it came to ‘collateral intrusion’ of spying on those around activists, anyone involved, however peripherally, in protest or campaigning was considered a legitimate target, and the focus is on privacy in the strictest, data protection sense. What it did not do was consider the kinds of friendships Kennedy was forming, and just how intrusive the operation would be for those whose lives he invaded and reported back on.
WITHOUT JUSTIFICATION, SPYING IS UNLAWFUL
As such, the important consideration of collateral intrusion (an Article 8 ‘right to private and family life’ consideration in itself) was brushed aside, because almost everyone Kennedy came into contact with could be regarded as a target. The authorisations were based on calling everyone an extremist rather than particularising. There was no proper assessment, as required for it to be a justified deployment. As one of the judges put it, in the standard authorisations form the section for considering on collateral intrusion became an Article 8 box-ticking exercise.
Many of the authorisations were misleading and some contained lies. For example, in one of them, Kate is described as being a main organiser of a housing cooperative which was named as a target. This was utterly false, and the NPOIU officers signing off on it would have known this. She is only included as a named target when she was living in Spain and Kennedy wanted to maintain contact with her.
The authorisations show no pressing social need, being about pre-emptive intelligence gathering without clear targets or goal. It was an operation for its own sake, and became increasingly so as time went on. No proper assessment was made about the levels of interference that were actually required or justifiable. This is something that an internal report from the Serious Organised Crime Agency (into Kennedy and the NPOIU) was critical of.
This leads to an important legal point: once it becomes an undercover deployment for its own sake, with no specific outcomes, how can it be capable of meeting the criteria of being ‘necessary’? The ‘necessity’ condition must be met for such operations to be lawful. Kate’s argument is that it can be shown these operations were not necessary and therefore none of the Mark Kennedy authorisations, and possibly other undercover deployments, were lawful.
THE RIGHT TO PROTEST
We began by returning to look at Articles 10 and 11 (free speech, and assembly), at the request of the judges. This pair of rights are often combined in this context as a general ‘right to protest’.
Kate is arguing that the extensive targeting of her over a decade amounted to not just an engagement of those rights but, more seriously, an actual interference with them.
This part of the case is not just about Kennedy, although he played a significant role in what can be termed ‘interference’, but the degree to which she was under surveillance and the impact it had on her. The basic argument is the State had no business monitoring her because of her political views and activities. It does not matter whether or not she was aware of the exact details of this surveillance, it still had an impact on her.
Kate’s barrister, Charlotte Kilroy QC, pointed to European case law that supported this position, recognising that extensive police surveillance in itself has a ‘chilling effect’ on protest.
As one of the judges, Professor Zellick, put it:
‘You might say the state has no business spying on the legitimate political activities of its opponents.’
The evidence allowed Kate to go further. By comparing her own memories with the contact logs, she could identify moments were she was being deliberately manipulated to meet Kennedy’s agenda (and that of his bosses) . He persuaded her to go to events that she was not interested in, or talked her out of others. In this he was leaning heavily on the closeness of their relationship and the trust she had placed in him.
She is still left wondering now just how much his influence affected her:
It is unchallenged in my witness statement that MK did influence and change my political views. #spycops were deeply manipulative and we were very close and he may have influenced me in ways I don’t even know. How many of the decisions and beliefs I held back then were my own?
Then there is the impact that the discovery has had on Kate and her comrades. She has gone from being deeply committed to political organising, to struggling to engage with people and large gatherings. She has become cut off from some groups as a result of her anxieties, which Kennedy and his cover officer knew affected her, which have now grown. Other groups were destroyed under the weight of the Kennedy revelations.
I now find it very hard to engage with politics that reminds me of MK. The impact of betrayal by MK and other #spycops was devastating for the political groups and communities. Even if I wanted to continue, many of those wonderful projects, groups and movements no longer exist.
At this point one of the judges asked about the fact that some of the movements Kate was involved in were aware of the dangers of state surveillance. Kilroy responded that a concern was one thing, but what Kennedy exposed was the sheer extent the police were willing to go to gather information on political views.
Things were far worse than what the campaigners feared – in effect, their paranoia was nothing compared to the actual reality. And because it only came to light accidentally, it means the police cannot be trusted to be honest, to root out misbehaviour in their units.
So having argued that there Articles 10 and 11 were engaged, and breached, the next step is again to consider whether the State could make the case that this was justified. The police have already conceded that the sexual relationship with Kennedy did in itself interfere with Kate’s Articles 10 rights. However, she wants to make the point that this goes much wider than Kennedy, that all the spying on her amounted to an ‘interference’, and that the actions of all the other undercovers need to be taken into account.
As with Articles 3 and 8 (freedom from torture etc, right to private and family life), the interferences arose out of the same police desire to monitor and control protest. It was the reason Kennedy and the other undercovers were deployed, and even the police’s own internal reports acknowledge that when it came to peaceful protest, they overstepped the line. The scope and depth of the reporting that the NPOIU set out to do was not justified under the legal regime, as shown in the analysis of the authorisations.
A PROBLEM WITH RIPA
Since 2000, the Regulation of Investigatory Powers Act (RIPA) has governed how bodies use covert monitoring tactics, including undercovers and informers, and issues such as collateral intrusion, should be handled.
There is also an important bit of case law, Malone v UK (1985), which requires that the law must be sufficiently clear to give citizens adequate indication of the circumstances and conditions on which authorities are empowered to use to this secret and potentially dangerous interference with the right to respect for private life.
Kilroy took the Tribunal through a careful analysis of RIPA, showing that Malone v UK was not satisfied. She pointed out that the level of authorisation required for undercover police was actually quite low in comparison to, say, planting a listening device or bugging a phone. Likewise, the conditions are much more stringent.
Who’d have thought that UK law, where uniformed officers need a warrant from a judge to search your garden shed, that all it would need would be the OK from another police officer for them to send #spycops to live in your home and sleep in your bed for years?
Kilroy argued this means that while some intrusion could be foreseeable, on the face of RIPA the public could not reasonably deduce that undercover policing would be used in such an intrusive way.
The judges questioned her, saying that while the relationships are agreed to be unlawful due to their violation of fundamental human rights, RIPA was not at fault, it’s just that the police hadn’t adhered to it.
To this, Kilroy responded that a related case, that of AKJ v Commissioner of Police of the Metropolis, had since ruled that the definition of relationships in RIPA as pertaining to undercovers did in fact encompass sexual/ intimate relationships. The law itself was not as clear as it should have been, given the extent of intrusion it permitted.
Without a clear prohibition on sexual relationships, the appropriate legal safeguards supposedly in place to properly reflect the severity of the intrusion were not actually there. So part of the problem lies with RIPA itself, something even HM Inspectorate of Constabulary had flagged up in previous reports.
THE POLICE REPLY
David Perry QC
The Metropolitan Police and National Police Chiefs Council, the Defendants in the case, were represented by David Perry QC. He began by claiming that the police were approaching the case with the least adversarial approach possible and seeking to disclose everything that could be, thereby raising not a few eyebrows.
He acknowledged that the operations were ‘tainted by illegality’ and their authorisations could be stigmatised as unlawful on the basis of the concessions already made by the police. These concessions were on the basis of Articles 3 and 8 (freedom from torture etc, right to private life), not on the grounds of the interference with the right to protest, other than where Kennedy’s sexual relationship with Kate Wilson had an impact on these.
This breach was further exacerbated by the fact that Kennedy’s cover officer, EN31, ought to have known of the relationship, a failure of the police’s ‘positive obligation’ under Articles 3 and 8. However, Perry takes EN31’s denial of any knowledge of sexual relationship at face value.
Perry didn’t want to detract from the admitted breaches, but did want to address their severity by interpreting the material as disclosed. This is a problem with much of this case – the lack of any real witness from the police side to adequately testify on their behalf. As a result, there is an awful lot of freestyle interpretation going on, with Perry putting it out there what he reckons the officers involved might have been thinking.
From the start it is clear that they are hanging Kennedy out to dry. Considerable time was spent on going through the regime, codes and training that officers received. We were told that they were instructed on the ethical and moral standards expected from them at all times. They say that Kennedy completely violated these. According to Perry, this was the starting point by which his fellow officers would treat and judge him, and he betrayed all of them, including EN31.
The police say they couldn’t possibly have foreseen what Kennedy would do. After all, before joining the NPOIU, Kennedy had been an experienced police officer (of ten years) which included low level undercover work as a Test Purchasing Officer buying illegal drugs. He’d gone through the training which, according to them, included prohibition of sexual relationships. His fellow officers could surely expect him to comply with the standards set out for all police officers, as well as for undercovers.
Lieven J: Is there any evidence, and I mean evidence in the broadest possible sense, of any officer every being subjected to disciplinary action for having engaged in a sexual relationship whilst undercover?
Perry: No, there is not.
Perry pointed out that in having sexual relationships, Kennedy destroyed his own credibility as an undercover. Kennedy would have known had he witnessed any serious criminality, he could have been required to give evidence in court – but any such evidence would be hopelessly compromised by his personal relationships.
It is unclear if the barrister is aware of the significance of his words – the police have for a long time argued that the undercovers were guaranteed secrecy for life, and indeed we have seen the extent to which they will protect their identities. However, Perry was effectively conceding that the policing regime itself meant this could not be the case, that undercovers could not have such an unqualified expectation.
He then went on to argue that Kennedy was passing himself off as an honourable officer to his colleagues in the NPOIU while lying to them. Events such as him reporting a sexual advance by an activist demonstrated that he could be relied on to report such things honestly.
However, other evidence from the logs show that he was lying to them about his actions and reasons for doing things. For instance, on one occasion that he spent alone with ‘Lisa‘ (another woman he deceived into a relationship), his log entry claims to have included other people with whom he discussed political activity. Elsewhere he exaggerated to suit his own ends, and probably to justify his continued deployment.
It seems the police point is MK did report a sexual advance by someone else. So #spycops Cover Officer could assume anything untoward that happened with anyone else (such as me) he would know. (Note: my relationship had been going on for 10 months by then)
EN31, was Kennedy’s Principal Cover Officer, someone he was in daily contact with and who had responsibility for his welfare and other issues. We know from the evidence that he would be physically close to Kennedy, and knew where he was at all times. He was in that position for the entire seven years of the deployment and clearly had a close bond with Kennedy.
It is accepted by the police that EN31, as Kennedy’s cover officer, should have been more intrusive and asked more questions. According to Perry, though, EN31 simply accepted Kennedy’s word in good faith and had no reason to believe otherwise. After all, Kennedy never reported that he was having sexual relationships. There were failings here, but the blame remains entirely with the undercover who deceived everyone, not just the women he targeted for relationships. Furthermore, the relationships were not for tactical purposes, they were for his own personal reasons and needs.
Significant to Perry’s case is that the contact logs did not record relationships per se. This was because Kennedy knew he’d be removed from the field if he did admit them.
The police go on to read a #spycops intelligence report 18/11/2003 “Katja” (that’s me) spent the night of the 17th November 2003 at Mark Stone’s flat in Marshall Street. Somehow this is supposed to support their case, because it doesn’t say we had sex. (We did)
It is also the police position that Kennedy’s own evidence about this, such as that given before the Home Affairs Select Committee, shows him to be an unreliable witness, angry with his seniors and seeking to blame them (when he said they must have known about his relationships). Even the Serious Organised Crime Agency (SOCA), which reviewed all Kennedy’s material in 2011, did not see a trace in the material of sexual relationships.
Kate noted the exchange:
Perry: “MK did not report any romantic or sexual advance by the claimant towards him whilst he was deployed.”
Judge: Mr Perry, is that really how you want that point to be recorded?
Apparently, yes, it is!
Overall, Perry is protective of EN31, presenting him as a trusting fella misled by Kennedy. He speculates on behalf of the cover officer as to what he was thinking and how he interpreted the the material, taking his statement very much at face value and focusing on the contact logs as if they gave the full picture. He did not explore the relationship between Kennedy and EN31, which appears from the logs to have been very close and matey.
Likewise, Perry has a very particular interpretation of the material in the logs on the grounds of viewing them through EN31’s eyes – as if they are the arbitrators of the facts themselves. Without going into detail, the Tribunal was presented with a weird interpretation of life among the campaigners targeted by Kennedy through this incomplete reporting. For instance, he spent some time on the fact that as they travelled around to events, campaigners would spend time at each others addresses. So mentions of this in the logs should not be taken as untoward or indicative of sexual relationships. Likewise, by the nature of the groups targeted, Kennedy would have to associate with people of both genders.
It was frankly weak stuff. It is a misleading reading of detailed contact logs which clearly infer Kennedy was conducting a relationship with Kate Wilson. At best, it is saying that in seven years, EN31 was so profoundly incompetent that he suspected nothing and did nothing. Likewise, the various senior officers in the NPOIU who also read the logs. It also calls into to question the thoroughness of the SOCA report if they missed the obvious.
A TERRORIST AT THE HOME OFFICE?
Not long before the end of the day, there was an important exchange regarding an NPOIU intelligence report from the time Kate Wilson is recorded as having first stayed over at Kennedy’s house in Nottingham. Justice Lieven noted that it contained a reference to a family friend of Kate’s, describing him as a ‘South African terrorist working at the Home Office’ when he was in fact a Minister of State.
Perry was quick to distance the police from the outrageous comment, claiming it was an example of Kennedy’s inaccurate reporting, but Justice Lieven pointed out that Kennedy’s contact logs for that period are among the documents that have been ‘lost’, and that this report is authored by someone else in the NPOIU, not Kennedy, and that they clearly thought the information was of sufficient interest to send up the chain. Perry accepted that the information was derived from Kennedy, but that the report was written by someone else.
Lieven demanded that the police lawyers address the issue by producing something that would allow her to understand who authored, saw and commented on the reports. The police barrister said he would have to take instruction, and promised her something by Monday.
THE HEARINGS CONTINUE…
On Friday 23 April, the Tribunal sat in ‘closed session’. This is where evidence that was not shown to Kate was to be discussed. She was not allowed to be there, although the police will be. Instead her interests will be represented by the Counsel to The Tribunal, Sarah Hannett QC.
Monday 26 April will see the open hearings resume, with a continuation of the police case. This will be followed by a response from Kate’s lawyer, Charlotte Kilroy QC, to any new points. At which point the hearing finally ends. It is unknown when judgement will be handed down, but it may take several months.