Pitchford LJ
Concerns about undercover policing have been rumbling on for some time - Guardian article by Helen Steel 23rd March 2016 "Under cover police spied on me.  Who else did they do it to?"

An Inquiry - being held under the Inquiries Act 2005 - is underway under the chairmanship of Lord Justice Pitchford - Inquiry website.  The Inquiry opened 28th July 2015 when the chairman made his Opening Remarks.  More details of the Inquiry are available HERE and see the Terms of Reference.

The Inquiry will report on undercover police operations conducted by English and Welsh Police forces in England and Wales since 1968.  The Inquiry will review the extent of the duty to make, during a criminal prosecution, disclosure of an undercover police operation and the scope for miscarriage of justice in the absence of proper disclosure.

The Inquiry will refer to a panel, consisting of senior members of the Crown Prosecution Service and the police, the facts of any case in respect of which it concludes that a miscarriage of justice may have occurred as a result of an undercover police operation or its non disclosure.  The panel will be able to refer such cases to the Criminal Cases Review Commission.  Given the very nature of this inquiry, it is not entirely clear why the Police should be involved in a decision about making a reference to the CCRC.

Paragraphs 17 and 18 of the Chairman's opening remarks are of interest and seem likely to give rise to some concern.

In paragraph 17 the Chairman notes that former undercover officers may have important evidence to give to the inquiry that raises issues of self-incrimination.  The Inquiry may request that the Attorney-General consider giving an undertaking that any evidence provided by a person to the inquiry will not be used in subsequent criminal proceedings against that person.

Paragraph 18 looks like an open invitation to the Police to seek orders preventing evidence being given in public.  The chairman said - "... undercover police officers may be bound by undertakings given to their employers or by statutory prohibition against making disclosure of undercover activities to third persons.  In all these cases it is my intention to seek from persons interested submissions as to the conditions, if any, under which evidence should properly be received by the Inquiry.  The Inquiry's priority is to discover the truth."

The Inquiries Act 2005 section 19 provides for RESTRICTION NOTICES which can result in the Inquiry hearing evidence in private.  On the 22 March 2016 the Inquiry Counsel team issued a supplementary note (together with an annex) on the legal test applicable to applications for restriction orders.  Some Restriction Orders have already been made - see Inquiry website RULINGS and ORDERS.

The principle of open justice is an important one for the rule of law but the Inquiries Act recognises that this principle may have to give way in some circumstances.  The Inquiry's priority is to discover the truth and "undertakings" and "restrictions" may be the price the public has to pay for that though a large number of such restrictions could undermine confidence in the inquiry process.  Time will tell. We may have to wait 3 years or more for the Inquiry report which will be delivered to the Home Secretary.  How much of it will actually be published also remains to be seen and section 24 of the Inquiries Act governs publication of reports.

Previous matters:

See the Court of Appeal judgment in R v Barkshire and others [2011] EWCA Crim 1885 which followed the Ratcliffe-on-Soar protests.  The Lord Chief Justice said - "In summary, these convictions were quashed because of the failure of the Crown to make proper disclosure of material relating to the role and activities of the undercover police officer, Mark Kennedy, as well as of materials which had the potential to provide support for the defence case or to undermine the case for the prosecution. These materials were pertinent to a potential submission of abuse of process by way of entrapment and in any event they had the capacity to support the defence of necessity and justification. The trial was rendered unfair and the convictions unsafe. Accordingly, they were quashed. We decline to order further inquiries by this court. Ancillary costs orders in favour of the defence were made at the conclusion of the hearing."

A report by Sir Christopher Rose considered the Ratcliffe-on-Soar protest cases and concluded that there were individual failings but there was no deliberate, still less dishonest, withholding of information.  CPS Statement

In 2012 a Memorandum of Understanding was entered into by investigators and prosecutors - see CPS 3rd July 2012.   The agreement, signed in June 2012, directs that close and early working between relevant organisations takes place so that the best evidence is gathered for prospective court cases, and more criminals are brought to justice.

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