Undercover policing has always existed, so why is it only now that a company focused on ethical cosmetics has engaged in what is, at its heart, a political, legal and civil liberties debate? This article seeks to explore some of the issues raised by undercover policing and looking at acts done by undercover officers that could lead to successful claims by members of the public affected by them.
For decades various undercover policing practices have existed to infiltrate activist groups with the intention of preventing crime, and since 2011 many allegations of wrongdoing by undercover officers have emerged. The extent of the allegations is far reaching and touches on issues such as the use of deceased children’s identities being adopted as undercover police officer’s identities, to the fathering of children in relationships conducted as the undercover officer’s identity.
The inquiry into undercover policing was set up in 2015 and is Chaired by Sir John Mitting. The purpose is said to be to “investigate and report on undercover police operations conducted by English and Welsh police forces in England and Wales since 1968. The Inquiry will examine the contribution undercover policing has made to tackling crime, how it was and is supervised and regulated, and its effect on individuals involved – both police officers and others who came into contact with them.” This was intended to have been an inquiry open to the public, however in practice this has been limited and much of the inquiry has been held in private. This is, in part, why the Lush campaign was launched.
Article 8 Human Rights Act 1998
The Inquiry has split into three modules and Module One exists to consider the deployment of undercover officers in the past, their conduct, and the impact of their activities on themselves and others. A preliminary issue was argued in relation to the disclosure of deceased children’s identities. This preliminary ruling considered arguments that the Police (as agents of the State) had breached the Article 8 rights of the families of those deceased children.
Section 6 of the Human Rights Act 1998 provides that it is unlawful for a public authority (including, for these purposes, the Inquiry Chairman) to act in a way that is incompatible with a Convention right. Article 8 of the European Convention on Human Rights states:
“Right to respect for private and family life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Counsel to the Inquiry concluded that there was currently no authority for a freestanding obligation to investigate breaches of Article 8 (compared to the need for an effective investigation of alleged ill treatment that reached the Article 3 standard) or to make disclosure of historical breaches of Article 8. Any decision made by the Inquiry to disclose the facts to the parents or close relatives of a deceased child would be made for the purposes of the Inquiry and not to fulfill the requirements of Article 8. This view also found support in the submissions of the Metropolitan Police Service, the National Police Chiefs’ Council and the Home Office.
It was argued that the state has appropriated, used and stored for covert and unauthorised purposes the personal details of a deceased loved one. The parents or closest relatives of those deceased children are direct victims for the purpose of Article 34 of the European Convention on Human Rights. They also argued, inter alia, that the state owes a negative obligation under Article 8 to disclose to the parents or close relatives of the deceased children not to interfere with their right to respect for private life, save of course for Article 8(2).
The inquiry in venturing into unchartered legal territory with these questions as to the rights of families will likely find itself making unpopular rulings with either the state or the public. The role however of the public inquiry is not to garner popularity in and of itself, it is to consider the circumstances and those may, in my view, give rise to a right for those families to be told that they may have a claim under Article 8.
TBS v Metropolitan Police Commissioner  EWHC 3094
The Lush campaign also attempted to expose to the public cases such as TBS. Although not a full trial the ruling is instructive as to the issues that arise in respect of “wrongful life” claims, legal duties owed by people in public office, and the predictability of harm as well as the identity of potential victims. From the perspective of the claimants, there is also the moral question of harm arising from bringing a child into the world.
In TBS, the claimant’s mother was a political activist and his father was an undercover police officer who pretended to share her political views. A liaison between Jacqui and BL led to the claimant’s birth in 1985. For three years the undercover officer took on the role of father, until he left in late 1988. In 2012 his role as a police officer was revealed.
In these proceedings the son sought compensation for, amongst other things, his Adjustment Disorder with Depressed Mood, which he said he has suffered as a result of finding out that his father was not a political activist but a police officer. He also claimed that he had suffered psychiatric injury from the officer purporting to assume a father’s role under a false identity and from him abandoning that role.
The claim was brought for misfeasance in public office and in negligence.
1. Misfeasance in public office
In this case it was an argument made in respect of untargeted malice, i.e. an act undertaken in the knowledge that the officer has no power to do the act complained of, or reckless as to whether that is the case.
The Metropolitan Police contended that the claimant had no standing to sue for misfeasance as he was initially not in existence at all, and then only a foetus at the operative time. A foetus has no legal status in English law. The claimant contended on the other hand that the victim of misfeasance need not be identifiable at the time of the wrongful act. There may then be some delay between the wrongful act and the completion of the cause of action by the suffering of damage, but that is not an unusual scenario.
The leading authority on misfeasance, Three Rivers DC v Bank of England  2 AC 1, describes untargeted malice as “Recklessness about the consequences of his act, in the sense of not caring whether the consequences happen or not, is … sufficient in law”.
Nicol J held that it was sufficient for the claimant to resist this strike out application by establishing that the officer knew that the he had been “likely to suffer psychiatric injury or was recklessly indifferent to this consequence.”
The defendant also submitted that “the negligence claim must fail so far as it relates to the way in which the officer performed his role as a father or the circumstances of his departure because, according to the expert doctor, the claimant has no memory of his father from his childhood”.
Again, the judge did not accept that this was sufficient reason to strike out the claim. The deception ran through the entire operation and it was “artificial” to divide it into different periods, pre-conception, conception to birth, and birth to abandonment of the family.
In respect of negligence, it was argued that the officer’s employer should have predicted that there were “obvious risks” that a child would be conceived in the course of fraudulent sexual relationships entered into by an officer whilst undercover. A related and more contestable claim was that a child conceived in these circumstances would suffer harm.
The defendant argued that the claim regarding the claimant’s conception could not succeed because, if he had not been conceived, he would not be alive. In effect, this was a ‘wrongful life’ claim and such claims are contrary to public policy (McKay v Essex Area Health Authority  1 QB 1166 CA). The claimant however was not saying that he should never have been born. Rather he was seeking compensation for the psychiatric injury suffered as a result of the deception practised on his mother and on him about his father’s circumstances. Such a claim did not offend the principle of the sanctity of life.
The judge accepted the principle of the claimant’s argument in this respect and dismissed the defendant’s application to strike out all causes of action.
The trial should ultimately unearth which elements are likely to succeed, and even if the claim itself fails for reasons of causation, the arguments could be made successfully when applied to an alternative factual matrix.
In making the preliminary ruling in TBS, the door is effectively being left open and this litigation running alongside the Inquiry should provide a body of case law that can assist in clarifying decades of law that has so far been hidden from public view. Given the gravity of the issues being raised and the sensitivity in respect of public protection, the arguments will always be finely balanced however that doesn’t mean that campaigning organisations should necessarily be criticised for wanting these issues brought into the public conscience.
 Counsel to the Inquiry’s note (17 May 2016), paragraphs 49 and 52
 Written submissions by the Metropolitan Police Service (27 May 2016), paragraph 4; written submissions by the National Police Chiefs Council (1 June 2016), paragraph 4; written submissions by the Home Office (1 June 2016), paragraph 3
 Written submissions by the Relatives (1 June 2016), paragraphs 30 and 31