Law and Rights

Climate change protesters - No.3 - I was just wondering ...

The former Police Officer (Mark Kennedy) who infiltrated climate change activists has sold his story to the Mail on Sunday. Such stories are almost always self-serving but it is an interesting account - see Mail Sunday 16th January 2010. A second trial was due to commence on 10th January but was dropped when the prosecution offered no evidence. The 6 defendants at the second trial denied involvement in a conspiracy to commit aggravated trespass.

It is now the law that a conspiracy charge may only be brought where the agreement is to commit a criminal offence. At common law this was not the case. For example, conspiracy to trespass was indictable as in Kamara v DPP 1973 (House of Lords). Indeed, in certain circumstances, a conspiracy to commit any tort might have amounted to a crime. Clearly, provided that which is agreed between the conspirators is an "aggravated trespass", modern law allows the same result as in the Kamara case.

The fictional Los Angeles detective (Lt. Columbo) used to say - "I was wondering ..." These events leave one wondering just what the answers to certain questions might be:

1. Precisely why did the second trial (due to begin on Monday 10th January) collapse? A number of possible reasons seem to be emerging but one sees no official statement. (a) Had Mr Kennedy offered to testify for the defence? (b) Did the CPS / Police prefer to "offer no evidence" rather than provide details of his involvement to the court? (c) Had Mr Kennedy recorded conversation with activists and, if so, did those recordings actually show that they had not entered into any agreement (i.e. conspiracy) to commit aggravated trespass? The latter is claimed by Mr Kennedy's story in the Mail. If true, it shows that there may have been willingness on the part of the Police to allow a miscarriage of justice to take place. There is to be an IPCC investigation. Furthermore, did the trial judge probe into the reasons for offering no evidence? If not, ought he to have done so?

2. Following on from (1), the effectiveness of the prosecution case disclosure regime in the Criminal Procedure and Investigations Act 1996 (as amended by the Criminal Justice Act 2003) might be called into question. This rather complex regime is aimed at disclosing to the defence that which is important to the defence case.

3. Mr Kennedy claims that, during an earlier protest at Drax (Yorkshire), he acted to prevent a girl being further beaten by Police Officers and that, thinking he was just another protester, they beat him. He claims that he was treated by a hospital. If true, that raises the concern about whether such actions are usual when the Police deal with protesters. Heavy-handed tactics have not been uncommon in recent years - e.g. the batons used to police the hunt protests in 2004 (here).

4. The Metropolitan Police National Public Order Intelligence Unit figures in the various media reports? The Association of Chief Police Officers (ACPO) has a National Coordinator Domestic Extremism (NCDE). Under the NCDE umbrella are the National Public Order Intelligence Unit (NPOIU), the National Domestic Extremism Team (NDET) and the National Extremism Tactical Coordination Unit (NETCU). Clearly, by having control over such a network, ACPO has obtained considerable power. One wonders just what the answers to Wedgewood-Benn's famous five questions would be - "What power have you got? Where did you get it from? In whose interests do you exercise it? To whom are you accountable? And how can we get rid of you?" If you cannot get rid of the people who govern you, you do not live in a democratic system - (Speech to the House of Commons - 22 March 2001). Clearly, the situation opens up the whole question of the accountability both legally and politically of ACPO.

5. Mr Kennedy claims that intelligence he obtained was presented to Prime Minister Blair. If so, why? (Note: Gordon Brown became P.M. in June 2007).

6. Mr Kennedy also claims that he was "authorised" to commit "minor" crimes - e.g. criminal damage. If true, can this be justified?

Many questions. Few satisfactory answers at the moment. In a supposed liberal democracy, is that acceptable?

Addendum 17th January:

Bindmans Solicitors have called for a judicial inquiry and have dismissed the IPCC and HM Inspectorate of Constabulary investigations as inadequate - see Statement from Bindmans 15th January 2011. They argue that a wide ranging inquiry is required to examine the use of undercover police, particularly their use against those exercising democratic rights of protest and expression; as well as concerns about the policing of protests generally, the police services' policies and their accountability.

"Ratcliffe case: Police smear campaign continues despite Mark Kennedy revelations" - Bradley Day - The Guardian 17th January 2011.

Addendum 2 - 21st January: The Law think blog has published an item about Police Disclosure ...

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