Freedom of Information Request Reference No: I note you seek access to the following information: My request relates to the review that has been conducted by Mick Creedon, the Chief Constable of the Derbyshire police, into the conduct of an undercover police unit known as the Special Demonstration Squad. I understand that Operation Herne has completed four reports, three of which have been published (and can be found here http://www.derbyshire.police.uk/About-us/Operation-Herne/Operation-Herne.aspx) I understand that the fourth report - entitled Operation Herne update - was delivered to the Metropolitan police in February 2015. Under the act, I would like to request a complete copy of this report. DECISION The information requested is partially exempt from disclosure due to the following provisions of the Freedom of Information Act 2000:     Section 23(1) - Information supplied by, relating to, bodies dealing with security matters Section 24(1) - National Security Section 30(2)(a)(i) & (b) - Investigations and proceedings Section 40(2) & (3)(a)(i) - Personal data Please note that although section 23(1) and section 24(1) are mutually exclusive they have been cited ‘in the alternative’. The ICO guidance titled ‘How section 23 and 24 interact’1 states: ‘Citing the exemptions ‘in the alternative’ means that although only one exemption is actually engaged the other is also cited so as to disguise which exemption in fact applies. This may be necessary in instances where citing one of the exemptions would in itself be harmful.’ 1 http://ico.org.uk/~/media/documents/library/Freedom_of_Information/Detailed_specialist_guides/how_sections_23_and_24_interact _foi.pdf Section 40 is only being cited in relation to paragraph 1.6 and 7.4. Section 23, 24 and 30 apply to all of the redacted information. This letter serves as a Refusal Notice under section 17 of the Freedom of Information Act 2000 (the Act). Information Rights Unit Chief Constable Constabulary Mick Creedon ?1?1 gm 0 C2 9221 mag-HI 223 mars 0% Q. rui- FD Operat?m gt: 3-: Qperation Protective Marking: RESTRICTED FOIA Exemption: Yes Suitable for Publication Scheme: No Date created: 20 March 2015 Operation HERNE Update February 26i5 Title and Version: Summary - Edited version HANDLING INSTRUCTIONS This document must be handled in accordance with the protective security marking shown at the bottom of the document and should not be disseminated to outside agencies] partners without the consent of the authorising officer or Director DPS. This FOIA table must not be detached from this Document Operation Content Introduction Resources Current Investigations Timescales Miscarriages of Justice Public inquiry Public Perception Limitations of Operation Heme Her Majesty?s lnspectorate of Constabulary 0 Options A A Primary Stakeholder Views Conclusion and recommendations m, ., 1.1 1.2 1.3 1.4 1.5 introduction Operation Heme is the title attributed to the independent investigation led by the Chief Constable of Mick Creedon QPM, into the now disbanded Metropolitan Police Special Demonstration Squad (SDS). Mr Creedon commenced this investigation almost two years ago with initial terms of reference, which are currentiy under review, to examine the conduct of the former SDS from its origin in 1968 to its closure in 2008, examining how it operated throughout its existence. The purpose ofthis report is to provide an update to the MPS Commissioner, inform him of the work to date and the progress made, whilst also informing him on the costs and. the level of resources deployed. This report will be shared with the Home Secretary as has been the case with previous Op Heme reports. The Home Secretary has to make a decision around the announcement, timing and terms of reference of a Public inquiry. in addition to informing the Commissioner and the Home Secretary, a copy of this report will be provided to Mark Ellison QC. Mr Ellison has previously prepared reports forthe Home Secretary which, in part, covered the activities of the SDS and their involvement with the Stephen Lawrence justice campaign. Mr Eliison is now providing a report to the Home Secretary and the Attorney General in relation to potential miscarriages of justice arising from the nonurevelation and the non-disclosure of undercover activity by the SDS and National Public Order Intelligence Unit (NPOIU). This situation report is intended to assist him in the preparation of his report. A parallel strand of Op Heme, exploring the development of undercover policing outside of the Speciai Branch arena, is also being conducted in order to ensure that the work of the SDS can be piaCed in the context of both the era and the more widely exposed work of undercover officers deployed against organised criminality. Mr Creedon is the National Policing Lead for Serious and Organised Crime and within his portfolio is Undercover Policing the working group being led by another Chief Officer. Mr Creedon is working with the undercover working group and the Coilege of Poiicing to continue to improve such covert activity and to implement the recommendations of the recent (Her Majesty?s lnspectorate of Constabulary) inspection of this area of work. 1.6 1.7 1.8 2.1 The investigations being undertaken within Op Heme are extremely complicated and circuitous with multiple strands involving criminal allegations, misconduct allegations and historic issues around the behaviour of undercover officers over four decades since the inception of the SDS in 1968. It must be borne in mind that these officers infiltrated more than varied groups over a forty year period. There are numerous interested externat stakeholders including activists, journalists, solicitors and politicians along with many government departments and national agencies including Independent Police Complaints Commission (IPCC), Criminal Cases Review Commission (CCRC), Crown Prosecution Service (CPS), Home Office, Home Affairs Select Committee (HASC), Metropolitan Police Service (MPS), Her Majesty?s inspector of Constabulary Attorney General?s Office (AGO), National Undercover Working Group (NUWG) and other Constabularies and Forces. The investigation has undertaken additional responsibility to investigate practices within the NPOIU between 1999 and 2011. Op Herne has identified NPOIU undercover officers who were deployed during this time. More recently Op Herne has also been tasked with a police service wide responsibility for the investigation of potential miscarriages of justice resulting from the non?revelation of undercover activity during SDS and NPOIU deployments (Operation -). Resources In 2011 this operation commenced with 4 (Four) officers from within the Metropolitan Police Service Directorate of Professionals Standards (DPS). At present there are 63 (Sixty three) staff members attached to the investigation element of Op Herne which is being managed on the CT HOLMES enquiry system (Counter Terrorism Home Office Large Major Enquiry System). A staffing review has identified that in order to effectively manage the current workload and responsibilities 85 (Eighty five) staff are required. The investigation is significantly under-resourced at present. The current timescale to graphically read (essential for an effective, professional investigation) the existing queue of documents within CT HOLMES is 3.1 3.2 3.3 Current financial analysis predicts that the investigation will cost in excess of 24.5 (Four and a half) million per annum. Current Investigations Op Herne is conducting a numberof criminal and misconduct investigations under the following operation names. - Op? - Op RiverwoodAubusson. - Neither Confirm Nor Deny (NCND) is a principle that has evolved over the years to protect covert assets, tactics and methodology in judicial proceedings. It is not solely about the protection of undercover officers. It was incorporated in the disclosure manual associated with Criminal Procedures and lnvestigatory Powers Act 1996. The term NCND has become more widely used and recognised since the introduction of the Freedom of Information Act (FOIA) 2000 where the principle is expressly enshrined within the Act (Section 2) and specific exemptions under Part of the Act. On 2nd July 2014 Lord Justice Bean presided over a case involving several women who had taken out a civil action against the MP8 Commissioner in relation to sexual relationships with undercover officers. in his findings Lord Justice Bean conciuded that; turn to the speci?c allegations that the individual men with Whom the Claimants had relationships were undercover officers. All have been publicly named in the media. Some have also self-disclosed; some have been the subject of official con?rmation?. 3.4 4.1 4.2 4.3 4.4 ?Self?disclosure is relevant, but it does not have the same signi?cance as of?cial confirmation by the police force concerned, a Minister or a court. In this judgement and the civil case Lord Justice Bean decided that two undercover officers should be named. Both had been publicly named via the media. They had also both been of?cially confirmed as undercover officers by a public body. Timescales As a result of staff shortages and abstractions to different strands of the investigation, in particular Operation -, it is anticipated that this work will not be completed until March 2016. However, this anticipated timescale does not account for the examination of the thirty seven various data storage devices seized from the offices of the SDS at?by officers from Op Heme in November 2011. These storage devices hold documents relating to the SDS for the period 1998 until its closure in 2008. The content of these devices is currently stored on a Forensic Toolkit (FTK) database. FTK is a computer forensics software programme which scans a hard drive looking for various pieces of information. FTK can, for example, locate deleted documents and scan a disk for text strings. it is a court-cited digital investigations platform built for speed, stability and ease ofuse. The fiies contained within the above storage devices have been reviewed to identify any emerging issues. Interim reports will follow which will highlight any issues identified by the review. it is estimated that these files contain in excess of 50,000 (Fifty thousand) documents. Detailed examination, reading and indexing to the current CT HOLMES standard and transfer to the CT HOLMES enquiry system is currentiy required in line with the terms of reference ensuring a thorough investigation takes place. To not carry out such an approach requires careful consideration, an understanding of the risks and recognition of the impact on interested parties and on the planned future Public inquiry. With current resources and based on the current methodology this task will take in excess of 27' (Twenty seven) years. Operation 4.5 4.6 5.1 5.2 Although the documents have been reviewed in order to identify emerging issues, it is possible that when these files are examined in detail further criminality, potentially serious, may be discovered. This has already been seen. Whilst it is always possible that this process may identify other criminality or misconduct it is believed that the likelihood is small and even if matters are discovered, currently the potential for criminal prosecutions or misconduct proceedings under Police Regulations is also small. A pragmatic and agreeable solution is now required to address further research of this data and the competing demands associated with a Public Inquiry. A sensible discussion and amended terms of reference are required to identify how this dilemma is progressed. Although the FTK contains an enormous number of files, the database is easily searchabie via the use of specific search parameters. A focused or victim led approach would greatly reduce timescales. The FTK wouid also enable any Public Inquiry to commence and subsequently research all themes or behaviours subject of the Inquiry. The option of Op Heme trawling through this data would provide transparent and comprehensive results but in a timescale and at a cost which may be deemed to be not in the public interest. Miscarriages of Justice Operation- Foilowing the announcement by the Home Secretary that there wiil be a Public Inquiry, in conjunction with Mark Ellison QC, the Crown Prosecution Service, the Home Office, Attorney Generai?s Office and the Criminal Cases Review Commission the investigation team is conducting a ?scoping? exercise in relation to potentiai miscarriages of justice involving non revelation of SDS and NPOIU undercover activity in criminal proceedings that led to a conviction, whether by guilty plea or after a trial. This is painstaking work complicated by the covert nature of the activity, the secrecy of Special Branch, the protection of intelligence sources and the lack of relevant documentation, ranging from original undercover officers? notes to police prosecution tiles and court records. The review transcends CPIA legislation in 1996, the creation of the CPS in 1984, the Poiice and Criminal Evidence Act (PACE) in 1986, the Regulation of Investigatory Powers Act (RIPA) in 2000 and the Police National Computer (PNC) in 1974. The reaiity is that the work is immensely complicated with real logistical difficuities. Op Heme has identified that there are ?ofticers employed over 40 (forty) years in both 5.3 5.4 5.5 5.6 5.7 the SDS and infiltrating over ?groups. The scale is immense and the complexities to overcome mean that the breadth and scale of the task make it virtually impossible to complete. Prior to 1998 MP8 policy dictated that documents in relation to minor offences were retained for 7 (Seven) years and then disposed of. Serious offences, apart from those relating to an offence of murder, were reviewed at 10 (Ten) years with the option to retain, but if not required; disposed of. Those records retained and those relating to murder underwent a further review at 25 (Twenty five) years with a View to select for permanent preservation in accordance with the Public Record Act 1958. There remained the option to retain such records that were not selected for permanent preservation for up to 100 (One hundred) years for a policing purpose. In 1998 periods of retention increased. Minor offences were retained for 7 (Seven) years. Serious offences, including murder were reviewed after 25 (Twenty five) years as per our statutory duty under the Public Record Act 1958, for potential permanent preservation at The National Archives, or are retained until the youngest victim/offender reaches 100 (One hundred) years of age at which point the record was disposed of. In 2004 a Best Value Review of Records Management reduced the period at which the majority of registered crime files were reviewed from 10 (Ten) to 7 (Seven) years. in 2006, the Management of Police information Codes of Practice were introduced, increasing many retention periods further. At this time the MPS was not in a position to align fuiiy with the concept of a Golden Nominal, (which MoPi is based upon). it was agreed that the MPS would work towards this level of compliance, with a target delivery of a technical solution by 2018. Since the inception of the Special Operations Squad (renamed Special Demonstration Squad in 1972/3 and Special Duties Section in 1997) in 1968 the types of criminaiity infiltrated by the SDS evolved over the years however the majority of Crime was low level and therefore retention of records was uniikeiy. initiain intelligence was gathered on individuals who were seen to be attempting to subvert the state. . . . . uperaboo 5.8 5.9 5.10 5.11 The first detailed ideology or ?Statement of Purpose? for the SDS is recorded on 26th November 1968. It reads as follows: "The primary object is to provide information in relation to public order problems: the secondary by?product is that our knowledge of extremist organisations and individuals active in them is considerably enhanced.? In 1968 the original 808 remitwas to gather intelligence on demonstrations by ieft?wing extremists and identify the organisers and participants promoting disorder or violence. However, world political events dictated that the unit included groups covering the extreme right-wing and Animal Rights. There was a continued focus towards all public disorder incidents. The shift in targets but consistency of practice during the life of the SDS is demonstrated by comparing the initial 1968 purpose and targets with the SDS Statement of Purpose as set out in the Annual Report for 1996/97: (1) To provide a quality service in the gathering and dissemination of high grade intelligence concerning public order and the activities of groups engaged in politically motivated crime and crime related to animals; (2) To ensure the safety and well being of the undercover officers empioyed for this purpose; (3) To ensure the security and integrity of the SDS operation. The Annual Report set out the objectives of the SDS as: (1) To supply information about the intentions of militant political extremists in relation to public order events; (2) To identify those who engage in preliminary planning or who take part in such demonstrations; (3) To identify suspects involved in breaches of the law before, during and after demonstrations; (4) To gather and record information about the formation and development of target organisations for long?term 5.12 5.13 5.14 5.15 intelligence purposes; (5) To provide intelligence on the criminal activities of individuals or groups involved in support of terrorism and animal rights extremism. From 1968 until their closure, the SDS provided intelligence on groups and people who committed, in the main, public order offences. However, there is no doubt that some groups targeted, did participate in significant criminaiity ranging from offences of criminal damage to the planting of incendiary devices and a range of terrorist activity. The conduct of the undercover officers ranged from being completely passive to them adopting legitimate tactics of supporting infiltrated groups such as actively supporting the criminai behaviour and even driving others to a demonstration. There is evidence that some officers held positions of trust, seniority and responsibility within targeted organisations. There is also evidence that officers were authorised to participate in crime. SDS officers and their managers generally operated secretly, with iittle or no revelation of undercover activity to public order Commanders, Senior Investigating Officers (SIO) orthejudiciary, Op Herne has identified some examples of revelation of undercover involvement to the Courts and CPS. The NPOIU was created in 1999 following an agreement between the Home Office and the MP8, as part of the Police Services response to campaigns and public protest that generate violence and disruption. Located within the MPS, it was funded by the Home Office to reduce criminality and disorder from domestic extremism and to support forces managing strategic public order issues. The unit gathered and coordinated intelligence that enabled the police to protect the public by preventing crime and disruption. included within the national remit was to evaluate, analyse and store information and to disseminate intelligence on animal rights. In January 2011, and following the concerns after the ?Kennedy case? of an undercover officer being publicly exposed, the NPOIU was subsumed with other units under the National Domestic Extremism Unit (NDEU) within the MPS. Operation 5.16 5.17 5.18 5.19 5.20 Whilst original pocket notebooks and detailed authorities have been recovered, the review is hindered by the lack of detail in relation to the actual behaviour of the officers. initial investigation shows that prosecutions involving the direct involvement of NPOIU undercover officers were generally disclosed to the SIG and the CPS. However, the intelligence only remit of both the SDS and NPOIU, the lack of original case files and associated documentation and the geographic spread of SDS and activity, added to the legitimate destruction of police, CPS and court records is severely hampering the decision making of both the CPS and the CCRC. Whilst this report has detailed some of the document retention policies of the MP8 and described the difficulties faced by Op Herne, it is important to remember that the activities of the SDS and were not just in London. The nature of the groups and their activities meant that in many cases their protest, violence and criminality was perpetrated outside of the MPS. SDS and undercover officers carried out their work across and in seeking to assess the scale of the potential miscarriage problem, consideration needs to include every police force in England and Wales. Current guidance is for the investigation within Op Heme to identify intelligence where the covert work of the undercover officer specifically directed influenced or facilitated the offending which led to conviction. This alone is complicated given the nature of the covert work and the long term infiltration of hundreds of groups with a disparate and changing ?membership? who were involved in a wide range of protest activity and at times criminal activity across England, Wales and beyond. The work is potentially far wider as the review also requires the identification of cases where there was a ?procedural irregularity?, in intelligence supplied by an undercover officer or material not being revealed to the prosecutor. In these cases the undercover officer may not have ?directed, influenced or facilitated? the offending but their presence, distant involvement or mere submission of intelligence not revealed to the CPS may still be deemed to be a procedural irregularity. Given the fact there is not a definitive court judgement on this matter of non-revelation, Op Herne and the partner agencies still have to have the widest consideration of the potential scale. The potential context of the miscarriage work is compounded by the broader understanding of undercover policing throughout England and IQ 5.21 5.22 5.23 5.24 5.25 Wales, outside of the SDS and NPOIU. The reality is that the issue of non-revelation of undercover officers? infiltration of all types of criminality is potentially much wider. Op Herne has established that many forces had covert units as part of the work against extreme football hooliganism in the 19803, using essentially the same methodology of long term infiltration as the SDS and NPOIU. In addition, the spread of undercover work against organised crime touches every force and every type of criminal activity. Whilst much of this activity will have been to obtain evidence, with undercover officers not only having been revealed to prosecutors but also giving evidence during court proceedings, there is clear potential some of the activity will not have been revealed in the time before the CPS and CPIA. It would be a mistake to simply confine the longer term thinking of behaviours, non-disclosure, miscarriages and indeed the Public Inquiry to only the SDS and as this would only examine the conduct of officers and not address potentially far wider issues. Should the Public Inquiry choose to examine the historic use of undercover officers nationwide, it is likely that there will be a wide spectrum of cases that will need to be examined by the Metropolitan Police, individual Constabularies and Forces. This is likely to have a significant impact on the resources of every Constabulary and Force concerned. The complexities involved in identifying intelligence attributable to an SDS undercover officer and associating it with a conviction is time consuming and within the Op Herne CT HOLMES incident room is analogous to ?finding a needle in a haystack?. Based upon current staffing and the processes involved, this will take approximately 27 (Twenty seven) years to complete. Even with a full complement of staff this process will take in excess of 18 (Eighteen) years. The NPOIU is no simpler. Whilst some original intelligence and pocket notebooks are available identifying subsequent activity and convictions requires national, physical research. To date, 85 (Eighty five) files relating to potential miscarriages of justice have been submitted to the Home Secretary?s Joint Working Group for Operation -. This group consists of the CCRC, CPS, Home Office, Mark Ellison QC and officers from Operation - The group?s ability to make decisions as to whether a miscarriage of justice has taken place has been severely hampered by the lack of original intelligence supplied Operatio 5.26 5.27 5.28 5.29 by the SDS officers to their ?cover? officers. This is not a reflection on any ?under?hand? activity by the SDS, but rather is a direct result of the properly managed disposal of the original intelligence submissions made by the undercover officers. This process led to sanitised accounts being prepared by the ?cover? officers which do not detail any exact action undertaken by the undercover officer. Consequently, the lack of information makes it extremely difficult to determine whether any miscarriage of justice has taken place or whether the undercover officer ?directed, influenced or facilitated? the offending. Similarly experience with the undercover officers? pocket notebooks show details of subjects intentions rather than describing the behaviour of the officer. The criminality committed by those targeted by undercover officers identified in the 85 (Eighty five) cases submitted to the Joint Working Group ranges from minor offences of ?Fly Posting?, Obstructing Poiice, and minor offences of Criminal Damage through to the more serious offences of Burglary, Possession of Firearms and Arson with Intent to Endanger Life. it is apparent, from examination of the 85 (Eighty five) cases, that in the early years of the SDS, reporting was mainly relating to public demonstrations, and minor public order offences. However, with the emergence and growth of?in the middle to late 19803, the undercover officers at that time started to focus and report on more serious crime. Revelation of SDS intelligence or operations was highly unusual. In 85 (Eighty five) examples submitted to date Op Heme has identified Potentially as a result of the MP8 destruction and retention policies. Op Herne has been unable to trace and locate any Police crime files in respect of the low level criminality that would have been dealt with at Magistrates Court. ii i2 5.30 5.31 5.32 5.33 5.34 It is important to identify that within the records and intelligence reviewed to date Op Heme has not found any evidence to suggest that any officer has acted as an ?Agent Provocateur' (AP) or been involved in the dissemination of Legaiiy Privileged material. Evidence of SDS managers clearly exaggerating the involvement of SDS officers and the value of their intelligence has been discovered, and certainly for the first two decades of the unit there was an annual report to the Commissioner and the Home Office to ensure continued funding. This would not be the only occasion where members of a unit embellished their importance and success in order to secure finance. From its initial review of the Heme has identified that the unit retained comprehensive records in relation to pocket note books and detailed RIPA authorities. This has enabled thorough research of subjects of interest to the NPOIU. Despite extensive research, Op Herne has been unable to recover the sanitised intelligence associated with the pocket note books and authorities as mentioned above. The recovery of intelligence and subsequent operational activity, prosecutions and convictions has been problematic due to the geographic national responsibility of the NPOIU. initial review suggests that the NPOIU officers were reporting on individuals who affiliated themselves to a range of protest groups and under this guise committed offences at a low level such as Criminal Damage, Assault on Police, Aggravated Trespass, Breach of the Peace and offences against civil injunctions. As stated above the purpose of the was to gather and co?ordinate intelligence in relation to campaigns and public protest which generate violence and disruption (particuiariy those focused on animal rights, some environmental issues and extreme political activism). 5.35 5.36 5.37 5.38 6.1 6.2 Unlike the SDS, any arrests of the NPOIU undercover officer were dealt with correctly by revelation to the CPS and strategies to avoid court appearances. In relation to participation, at this time, only incidences of a minor nature have been discovered. These were reported to the Authorising Officer as per guidance. Intelligence that was provided was in the main intelligence that would assist the police in preventing unlawful protest, disruption of events and provide information that would assist in the appropriate police resources at events and demonstrations. It is clear that revelation of NPOIU undercover officer involvement in cases was revealed to the CPS. However, the lack of CPS and court records prevents the enquiry establishing the extent and completeness of such revelations or disclosure. Public Inquiry In March 2014 the Home Secretary announced a Public Inquiry into ?the SDS and undercover policing? although the statement to the House of Commons did not detail which aspects of undercover policing would be addressed. Clearly comprehensive terms of reference for the Public inquiry will be required. Ordinarily such an Inquiry would not commence until the criminal investigations have been fully concluded and any potential court proceedings finalised. The Inquiry may also have to wait for the appeal process in potentiai miscarriages of justice to be completed. In some cases this could also involve a rehearing of evidence, if there was sufficient evidence, and it is in the public interest to re?try a defendant. There is an option that an Inquiry could consider cases where criminality had been investigated and a decision made not to commence l3 M- 6.3 6.4 6.6 6.7 proceedings or where convictions had been quashed or an appeal was not appropriate. The timescales associated with completing this required work, almost three decades, are quite simply not tenable and an alternative solution will be required to serve the public interest. A radical solution would be to commence a Public inquiry on a ?truth and reconciliation? basis and the important factor of restoring public confidence in undercover policing cannot be underestimated. It is a fact that the SDS and NPOIU no longer exist and whatever their failings, they are historic. Op Heme believes that the vast majority of criminality, misconduct or behaviours associated with the units are likely to have already been identified. As highlighted later in this report there have been very limited complaints despite extensive and comprehensive exposure of the unit and its members aithough it could (and will) be argued by some that this is only because of the intensely covert nature of the unit and the fact that many of those infiltrated and reported upon will not even know they were subject to such activity. it must be acknowledged that a Public inquiry will involve evidence being sought from many individuals involved in undercover policing. There is no doubt that applications to the ?Chair? of the Inquiry for some witnesses to give their evidence entirely in secret, or certainly with the protection of anonymity, will be made. This is as a resuit of the risk and threat posed to the officers and their families from previous deployments into dangerous situations and organisations. There will also undoubtedly be many documents that will not be suitable for public revelation or exposure due to the need to maintain nationa: security in addition to the complexities of timescales, volume, transparency, public confidence and the fact there have been very few public complaints, any discussions aboutthetiming ofthe Public inquiry need to consider the recent nationwide inspection of current undercover policing carried out by Her Majesty?s inspectorate of Constabulary. The HMIC inspection was far reaching and the subsequent police action plan and a letter from the respective policing leads is within Operation 7.1 7.2 7.3 the House of Commons library. There is a police and partner working group ensuring the recommendations are addressed, and this work is overseen by the College of Policing Oversight group on which Chief Constable Creedon sits as do a number of independent members. The up to date report should also be considered when deciding on the benefits of conducting further historic forensic investigation ofthe units. Public Perception The SDS was first exposed nationally in 2002 during the 3 (Three) part BBC documentary ?True Spies?. This documentary exposed the activities of Special Branch, their undercover officers and the methods they used including the use of deceased children?s identities as part of their covert identity. Further exposure of the SDS took place in 2010 and has continued to the present day. At the same time there was widespread exposure of the NPOIU as a result of the ?Kennedy? affair when the actions of an undercover officer (and his identity) were subject to significant media reporting, documentaries, several reviews and numerous convictions being overturned. This exposure of the SDS and NPOIU has been both national and international and includes the Home Affairs Select Committee, BBC and Channel Four documentaries, as well as three published Op Heme reports. There has also been wide-scale reporting in national newspapers, the publication of a book ?Undercover - the true story of Britain?s secret police? and extensive coverage on the internet and social media. 3 (Three) officers have publicly exposed their undercover activity and true identities and there is significant media speculatation in relation to the idenities of a large number of undercover officers. It is worthy of note that despite the publicity and what some would say is intense public interest and outcry from interested parties, to date only three complaints have been made. These relate to the use of deceased children?s identities, the sharing of information with the ?Blacklist? and an inappropriate long term sexual relationship. There are also a number of civil cases against the Commissioner concerning intimate sexual relationships, although the majority of individuals involved have declined to assist the Op Herne investigation and wilt not make a criminal complaint, thereby limiting the evidence collection possibilities for the inves?ga?on. i5 further allegation has been received that an SDS officer was responsible for planting an incendiary device at Debenhams in 1987. Peter Francis has alleged, in the media, that he was tasked with obtaining intelligence on Black Justice Campaigns. Francis has refused to engage with Op Heme. Finally, 2 (Two) individuats have approached the CCRC in respect of unsafe convictions, which resulted in their convictions being quashed. it could quite properly be argued that the most appropriate way to encourage members of the public with genuine grievances to come fon/vard is to hold the Public Inquiry sooner rather than later. This will in some way assist in restoring public confidence and provide a proper and public opportunity for other matters to be heard that have not been referred to Op Heme. To date there have been no criminal or misconduct proceedings. Files have been submitted to the CPS in relation to 5 (Five) officers. The CPS have stated that in relation to the matters of intimate sexual relationships, there is insufficient evidence to provide a realistic prospect of conviction At present the amount of publicity received and the extent of the exposure of officers involved, appears disproportionate to the allegations that have been forthcoming, when compared to the extent of the undercover activity and the number of officers exposed publicly. In order to provide a full and accurate picture of court proceedings it is necessary to mention that at present thirteen civil actions from members of the public have been raised against the MP8. As previously highlighted, Op Heme has independently identified a number of criminal and misconduct matters as a result of examination of records and these matters have not yet been conciuded. it is possible they will result in criminal or misconduct proceedings. This is far from certain based on previous submissions, some of the complexities of considering behaviours of so many years ago and of coliecting evidence in a form that would support a potential prosecution. t?Jperatien 7.9 Without seeking to second guess iines of defence, officers will undoubtedly rely on abuse of process arguments, the difficulties of time, the lack of records, the lack of any formal training and management support, the personal damage of long term exposure ?in the field? and the freedom given to them by their own policy? as written in the ?Tradecraft? document 7.11 7.12 8.1 Op Heme has identified a number of vulnerabilities, risks and threats to the MPS which will be addressed in further reports to the Commissioner in due course. However, consideration must be given to the proportionality of continuing the investigation in its current form in View of the cost and time involved and the benefits that could be realised. Op Heme has repeatedly stressed that the majority of SDS officers have performed their roles bravely and with the utmost integrity and have readily assisted this investigation. Many are very fearful that they will be exposed during a Public inquiry and it is no exaggeration to state that some would be at considerable personal risk if their activity and identity was exposed. There is clearly a need to finalise the criminal investigations, conduct the review into miscarriages of justice and to review the information held within the FTK. However, the external pressure of a Public Inquiry deems it necessary and appropriate to identify the options availabie, with due regard to all of the stakeholders involved as the cost and timescales are too prohibitive to serve the public interest. Limitations of Operation Herne As has been discussed above, Op Heme is mandated to look at the conduct of the Special Demonstration Squad and the National Public Order intelligence Unit. Based on current staffing and issues identified to date this investigation will not be complete for approximately 27 (Twenty seven) years. It must be highlighted that this 27 (Twenty seven) year time span does not take into account any additional matters that may come to light during the current investigations which may require further investigation. There have already been several examples of this during the work of Op Herne to date, and if this is the case then clearly the projected 27 (Twenty seven) year investigation period will increase. i7 18 8.2 8.3 8.4 9.1 Should the option to commence an early Public Inquiry be considered viable, there is the potential to increase public awareness about concerns, uncover ?wrong doing? and even identify potential miscarriages of justice. The Public Inquiry could replace the Ellison miscarriage review and provide a portal to encourage potential victims of a miscarriage of justice to come forward. Ifthe Public inquiry was launched, it is possible that Op Herne or the Inquiry would be inundated with complaints or allegations from persons who feel they have been subject to miscarriages of justice by undercover officers who have no link whatsoever to Op Herne, the SDS or the NPOIU. Conversely some individuals who might have a legitimate case may well have no suspicion that their case could have been impacted by the involvement and behaviours of an undercover officer. it is important to repeat that as well as the SDS and NPOIU there are and have been many other units who utilise the services of undercover officers. The clear question is that, if during the Public inquiry, complaints or allegations are made against any units other than the SDS and NPOIU, who will be responsible for investigating these? Due to the limitations of Op Herne and the current workload it is clear that, shouid any complaints or allegations be made against any of the above units, then these could not be investigated by Op Heme in its current guise. Her Majesty?s Inspectorate of Constabulary (HMIC) Since the closure ofthe SDS in 2008 there have been 3 (Three) separate HMIC reports in relation to undercover policing. in 2012 HMIC publiciy reported on the deployment of undercover officers from the NPOIU for the purpose of gathering intelligence. In 2013 HMIC published a progress report in respect of its 2012 recommendations and conciuded that ?further inspection work [was] necessary to examine all 9.2 9.3 9.4 10 10.1 police undercover work?. Latterly, in a letter dated 27 June 2013, the Home Secretary commissioned to inspect the effectiveness of the arrangements in place in all police forces to carry out, manage and scrutinise undercover operations. In a wide ranging report, in general HMIC found that: ?In general, undercover police of?cers (by whom we mean all those who are deployed in undercover activities, irrespective of their police force or law enforcement agency) carry out their roles professionally and with great courage. We found them to be dedicated to their task. We were impressed by their keen awareness of the vital role which they play in protecting our communities, and the legal, practical and ethical environment in which they operate. We applaud their bravery, their professionalism and their skill. The work of the vast majority of individual undercover police of?cers, whilst unsung, should never go unnoticed. in this report made 49 (Forty nine) recommendations to Chief Constables, the heads of law enforcement agencies, the National Crime Business Area and the College of Policing in relation to undercover policing. These will be taken forward by the National Undercover Working Group (NUWG). in May 2014, the College of Policing published a Code of Ethics, Principles and Standards of Professional Behaviour for the Policing Profession of England and Wales. it sets out nine principles which every police officer, including every undercover officer, should adopt. There is a specific reference to the need for every police officer to work honestly and ethically and the code specifically took account of the covert aspect of policing. Undercover officers and those who supervise, manage and authorise their work are now trained to a national standard and the impact of the Code of Ethics is implicit within this training. There is no doubt that the situation in relation to undercover policing today is vastly different to that which existed during the years of the SDS. Options As already discussed, continuing to investigate miscarriages of justice and the possible commission of criminal offences in the way Op Heme currently is, will take in the region of 27 (Twenty seven) years, cost well in excess of ?100m (One hundred million) and divert a considerable number of officers from front line policing. l9 20 10.2 10.3 10.4 10.5 10.6 10.7 10.8 Consequently, in order to reduce the timescales involved, reduce the amount of monies spent, continue to address the very serious issues identified and to allow the Home Secretary to hold a Public Inquiry in the near future, an alternative course of action must be found. Op Herne is currently investigating a number of criminal and misconduct allegations. Due to staff shortages and abstractions to different strands of Op Herne it is anticipated that this work will not be fully completed until March 2016. It would seem that March 2016 may be an appropriate time to hold a Public inquiry. However, this does not take into account the investigation into the possible miscarriages of justice to be completed. Delaying a Public inquiry for 27 (Twenty seven) years is clearly not feasible, desirable, realistic or acceptable to anyone. Therefore, it is proposed that initialiy Op Heme concludes the investigation of criminal and misconduct offences and either investigates possible miscarriages ofjustice where a specific complaint is made or, in conjunction with the Ellison Joint Working Group, identifies feasible and realistic parameters for this particular strand of work. This would allow the majority of staff to be diverted from miscarriages of justice to the greater priority, which has to be the full and proper investigation of criminal offences. This will mean a short term reduction in activity in relation to miscarriages, but will reduce the time necessary to complete such criminal and misconduct investigations. Should a Public Inquiry be held in 2016, any possible miscarriages of justice emanating from the Inquiry and the enhanced public knowledge and understanding could then be investigated by Op Herne. it is possible that the significant media exposure to date has already been sufficient to encourage those who feel they have been subject to a miscarriage of justice to come forward. It is likely that there may be many convicted of criminal offences (by way of guilty plea or after atrial), who are not aware there was an undercover officer involved in their activity and will therefore never come forward - even if they are aware of the miscarriage issue and the inquiry. The challenge is whether this duty remains with Op i-lerne and the multi? agency review team and if so, how wide this responsibility is? Alternatively, more focussed parameters could be agreed. For example; the review could focus on specific individuals subject to investigation by Op Heme or those officers already exposed. Operation 10.9 10.10 10.11 10.12 Another option would be to focus on all operational activity post 1996. This would coincide with relevant disclosure legislation (CPIA), improved record keeping and retention and wouid increase possibilities of obtaining information from records, or individuals that would assist the decision making process. This in itself remains a and time consuming process which couid be assisted by interviewing the undercover officers involved and identifying from them occasions when they were arrested in role, or potential cases of concern. The options proposed would identify cases of note, the role played by the officer and would support the views expressed by the CCRC and CPS. The benefits of these options are many and would: - Allow Op Herne resources to be directed to the investigation of crime and misconduct thereby ensuring these investigations are carried out expeditiously. - identify cases of concern to the statutory bodies and provide the best chance of document recovery and effective decision making. - Allow a Public inquiry to be held as soon as practicable. - Ailow a policy decision to shorten Op Heme work streams to an acceptable timescale. - Ensure the saving of a substantial amount of money, resources and time. - Allow a Public inquiry to encourage people to come forward to speak to Op Heme regarding possible miscarriages ofjustice. - Encourage others to come forward who have to date not engaged with Op Heme. At present, solicitors, complainants and at least one individual claiming to be an ex undercover officer have refused to co?operate with Op Heme, resorting instead to civil remedies and publicity, The holding of a Pubiic Inquiry will give 22 10.13 10.14 11 them the platform they require to air their grievances. This would allow Op Heme to identify and investigate allegations of a criminal or misconduct nature and conclude them expeditiously. The overall situation as described is analogous to ?The Gordian Knot?. This legend, associated with Gordium and Alexander the Great, is often used as a metaphor for an intractable problem, disentangling an ?impossible? knot, solved easily by ?thinking outside the box? and simply cutting through the knot rather than seeking to untangle the impossible. At this stage it is clear to Op Heme that this is a matter that cannot be solved by historic investigation. In this case, the ?thinking outside the box? involves the holding of a Public Inquiry at the earliest opportunity and alongside the criminal, misconduct, miscarriage and historic perspective work of Heme. Primary Stakeholder Views CPS CCRC IPCC IPCC have reviewed all the referrais submitted to them. To date they have chosen to ?Supervise? five investigations and ?lndependently? investigate one. The IPCC have no role in the Joint Working Group relating to the miscarriages of justice. it is significant that after three years only two people have complained to the CCRC and only three compiaints have been made against police despite the fact that this matter has been the subject of widespread publicity and media comment. lt is also worthy of note that despite a large number of investigations being referred to the they have only chosen to investigate one ?lndependently?. Operation 12 12.1 12.2 12.3 12.4 12.5 12.6 12.7 Conclusion and recommendations There is no doubt that the situation where a complete investigation is anticipated to take 27 (Twenty seven) years is untenable. The options above could be adopted individually or as an amalgamation which could provide a cost effective solution, ensuring that all the criminal and misconduct offences are dealt with expeditiously. It must still be recognised that this is a significant piece of work that will require significant resources and a greater degree of focus. it would allow a Public Inquiry to commence whilst at the same time providing an opportunity for all those who feel they have been the subject of a miscarriage of justice to come fonNard and have their case examined by Op Heme or the Public inquiry. Mark Ellison QC has been fully briefed on the enormity of the size and scale of this task through the working group and the issues faced by Op Heme. In the near future Mr Ellison is due to submit an interim report to the Home Secretary and the Attorney General. It is hoped that in his report Mr Ellison will provide, his view and preferred options as to how the work around possible miscarriages of justice should progress. It is acknowledged that the options provided in this report all have and weaknesses. However, it is clear that the way forward will be directed by the Ellison report to the Home Secretary and Attorney General, and their subsequent recommendations. Op Heme will then require set parameters and direction from the statutory bodies as to the direction of any future work that it is required to complete investigations into Miscarriages of Justice. 23