On 30 September 2021, the Investigatory Powers Tribunal (“IPT”) gave its judgment in Wilson v the Commissioner of Police of the Metropolis. Kate Wilson, an environmental activist, argued that the Metropolitan Police Service (“MPS”) violated her human rights by allowing an undercover officer (“UCO”) to deceive her into a sexual relationship. The IPT sided with Wilson, finding a “formidable” list of human rights violations, including that Wilson was subjected to inhuman and degrading treatment. 

Wilson’s case is part of the wider "Spy Cops" scandal in which some UCOs had sexual relationships with the women they were deployed to surveil. This, in the IPT’s view, amounted to sex discrimination against these women who, as a group, were disproportionately affected by the MPS’ actions. The judgment comes at a challenging time for the MPS, with public trust low following the murder of Sarah Everard by an MPS officer and allegations of misogyny.

BACKGROUND

Mark Kennedy, alias Mark Stone, was deployed as a UCO during the 2000s. In November 2003, he infiltrated the Sumac Centre in Nottingham – a melting pot for left-wing activists – where he met and began a sexual relationship with Wilson. Their relationship continued until 2005 when Wilson moved abroad. Kennedy and Wilson remained close friends until his true identity was revealed publicly in October 2010. Following this revelation, Wilson brought an action against the MPS in the English courts, culminating in her claim before the IPT.

Following the public outcry, the UK Government set up an independent inquiry to so-called spy cops. The Undercover Policing Inquiry (“UCPI”), also called the Pitchford Inquiry, was given a remit to investigate the deployment of UCOs in England and Wales dating back to 1968.

THE IPT’S JUDGMENT

The IPT held that the MPS had violated five of Wilson’s rights under the Human Rights Act 1998:

1.     to respect for private and family life,

2.     to freedom of expression,

3.     to freedom of assembly,

4.     not to be discriminated against, and

5.     her right not to suffer inhuman and degrading treatment.

In particular, the IPT stated that MPS officers failed to properly oversee Kennedy’s deployment. While the MPS argued that UCOs were officially prohibited from forming sexual relationships while on deployment, the IPT felt that this official prohibition was “undermined by the sheer frequency with which [Kennedy] (and other UCOs) did conduct sexual relationships without either questions being asked or action being taken by senior officers”. These officers, the IPT concluded, either knew of the relationship, chose not to know, or were incompetent and negligent in not investigating clear leads that Kennedy and Wilson had formed a close (and potentially sexual) relationship. The fact that Kennedy’s deployment was not necessary in a democratic society revealed, in the IPT’s view, “disturbing and lamentable failings at the most fundamental levels” within the MPS.

DID THE MPS DISCRIMINATE AGAINST WILSON?

While it admitted that it had violated some of Wilson’s rights, the MPS argued that it had not discriminated against her. The IPT had found breaches of Wilson’s other rights and it was not necessary to consider the issue of discrimination, argued the MPS. The IPT disagreed. Given the nature of the case and the “evidence of such conduct being widespread” within the MPS, it was, in the IPT’s view, inappropriate to disregard the fact that the “impact of the [MPS’] unlawful actions fell disproportionately on women”.

This disproportionate impact, according to the IPT, amounted to discrimination. Discrimination can take place both directly or (as in Wilson’s case) indirectly where a certain action has a disproportionate effect upon a person with a protected characteristic, such as sex. As such, it did not matter that the MPS had not systematically targeted women when deploying UCOs; there was “incontrovertible” evidence that the MPS’ tactics had a disproportionate impact on women. For example, the UCPI granted 27 women core participant status (on the basis that they had been deceived into sexual relationships with UCOs) compared to two men (neither of which had been deceived into a sexual relationship with a UCO).

The IPT also disagreed with MPS’ claim that, in order to show that she had been discriminated against, Wilson would need to show that a man who was subject to surveillance by a female UCO would not face the same risk of being deceived into a sexual relationship. In the IPT’s view, this argument “missed the point”. There were significantly more male than female UCOs and a significant number of those male UCOs had sex with women. The impact on women was much greater than the impact on men and that was a direct consequence of the MPS’ failure to train and supervise its UCOs.

The MPS did not provide any evidence to justify this difference in treatment. Instead, the evidence presented showed that MPS officers had very little concern for the impact of their tactics on the women affected. Given the obvious risk of placing male UCOs into the lives of young women, the IPT felt that “the failure to take adequate steps to protect [these women] from breaches of their human rights [was] particularly stark”. The IPT, therefore, found that Wilson’s right not to be discriminated against on the basis of sex had been violated. 

THE JUDGMENT’S IMPACT

The IPT’s finding of discrimination, and in particular its statements that MPS officers gave little consideration to the impact of their tactics on the women affected, should not be understated. Wilson is also not the only woman affected by these tactics; many others were deceived into sexual relationships with UCOs. Mark Kennedy alone is reported to have had relationships with as many as ten other women. He was only one of many UCOs deployed by the police.

The IPT’s criticisms also come at a difficult time for the MPS. In the wake of the murder of Sarah Everard, there have been a growing number of reported allegations of misogyny within the MPS from victims and female officers. Similarly, after revelations that Wayne Couzens (the serving MPS officer who murdered Sarah Everard) had previously been linked to allegations of indecent exposure – and had even been nicknamed “the rapist” by female colleagues – the Home Secretary announced that there would be an inquiry into the “systematic failures” which led to Everard’s death. Cressida Dick, the Commissioner of the MPS, also announced the launch of an independent review into the MPS’ culture. Following the IPT’s judgment, Wilson commented on the similarities between the IPT’s criticisms and the issues that the MPS faces today. She described the “failure of the police to protect women from sexual predators within their own ranks” as still being a live issue.  

Ruaridh holds an LLB in Law and French Language from the University of Glasgow, where he focused on the case law of the ECtHR and its relationship to the jurisprudence of the Court of Justice of the European Union. He previously worked as a caseworker at the Advice on Individual Rights in Europe ("AIRE") Centre in London and subsequently as a stagiaire at the General Court of the European Union. He is now training as a solicitor in London.

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