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EU: State guidelines for the exchange of undercover police officers revealed

17 May 2013

17.05.2013 - Statewatch can today publish a template 'Memorandum of Understanding for the use of undercover officers' produced by the European Cooperation Group on Undercover Activities (ECG) in February 2004.

The ECG was established in October 2001 "at the suggestion of several national agencies in Western European states that use undercover investigators" and is made up of police forces from across the EU, as well as non-EU states such as Albania, Macedonia, Norway, Russia, Serbia, Switzerland, Turkey and Ukraine. [1]

According to answers given by the German government to parliamentary questions from Die Linke, the group was established to strengthen "international cooperation by law enforcement agencies at the European level with respect to the deployment of undercover investigators to combat organised crime." [2]

The German government has also referred to "politically motivated" crime as one of the "main issues" looked at by the group, [3] and has admitted that the work of the exposed police spy Mark Kennedy was discussed following his widespread exposure by the mainstream media in January 2011.

The Memorandum

Produced by a sub-group of the ECG made up of representatives of police forces from Belgium, Denmark, Finland, Germany, Romania and the UK, the Memorandum of Understanding (MoU) outlines the generic structure and issues to be covered in agreements for the cross-border deployment of undercover police officers. This includes the legal framework; objectives of the deployment; management of the operation; "hard criteria" such as how evidence may be given in court and whether carrying a firearm is permitted; and communication with superiors.

With Belgium in the chair and the UK providing the secretary, it would appear that the two countries were heavily involved in the work of the sub-group. Both countries would later go on to cooperate in the leadership of the International Specialist Law Enforcement Project dealing cross-border collaboration on eavesdropping and bugging techniques, along with Germany's Bundeskriminalamt (BKA). [4]

While it may simply be coincidence, it is notable that Mark Kennedy's overseas activities began in the months following the agreement by the ECG sub-group on the generic MoU in February. According to the chronology of Kennedy's activities compiled by the website Powerbase, he first visited Germany in the spring of 2004. [5]

The following year he played a key role in the organisation of protests against the G8 meeting in Gleneagles, Scotland, to which a number of German undercover officers - possibly five - were posted by the BKA and put under the control of the National Public Order Intelligence Unit (NPOIU). [6] The NPOIU has since been absorbed into the National Domestic Extremism Unit and placed under the control of the Metropolitan Police, rather than the Association of Chief Police Officers.

From 2006 onwards, Kennedy began spending an increasing amount of time in Berlin, and in January 2007 he also visited Copenhagen for the first time. Denmark is a member of the ECG, and a police representative called Jan Sommer represented the country in the sub-group that drew up the MoU.

Whilst in Berlin in late 2007, Kennedy set fire to a bin but the court case was later dropped following the payment of a small fine. According to Powerbase, this means that "British or German police paid the bill at the court."

Whether this was planned by one of Kennedy's superiors or was a more spontaneous act remains unknown, but if Germany and the UK were using the 2004 MoU as a basis for cooperation they would have been obliged to take such matters into account. While stating that "the operative must obey the law, regulations and policies of the host country as well as those of their own country," it also shows that cooperating states have to consider "what special conditions must be obeyed, i.e. no controlled deliveries/entrapment, the committing of crime, recording of conversations, etc."

The question of exactly where the political impetus for the drawing up of the MoU and the apparent increase in the use of cross-border undercover deployments came from remains unanswered. Germany and the UK have both played key roles in the exchange and use of undercover operatives in protest movements, and when the UK held the Presidency of the EU in 2005 one area of focus was "intelligence-led police operations" and "better exchange, analysis and use of information for law enforcement." [7] An initiative of the German government saw Council Conclusions adopted in June 2007 on simplifying the cross-border deployment of undercover officers, aimed at "eliminating legal barriers to the international exchange of infiltrators." [8]

The UK's goals during its Presidency stemmed from the Hague Programme, which dealt with EU Justice and Home Affairs priorities for the period 2005-2010. One of the priorities in the field of terrorism was for Member States to "use the powers of their intelligence and security services not only to counter threats to their own security, but also, as the case may be, to protect the internal security of the other Member States." [9] While this came under the heading of "terrorism", it is of course not unknown for policies introduced for one purpose to be used for another.

Annexed to the MoU is a list of "UK risk assessment considerations". Assuming such a risk assessment was undertaken for all of the NPOIU's undercover deployments that sought to infiltrate protest groups, the answers given by the agency to a number of the questions are likely to be of interest to those who have been affected by undercover officers, and those who have followed the story:

- Comment on any adverse impact on community confidence or safety that may result from the proposed activity in the event of a compromise?
- Is there a risk of disproportionate damage to our professional reputation if the operation is exposed, equipment compromised or a prosecution collapses?
- Do the CHIS [Covert Human Intelligence Source] and/or UCO(s) (undercover officer) and members of public who may assist or be subjected to collateral intrusion face any physical risks?
- Are there any risks to the safety of the subject(s)?
- Can the authorised participation be justified if it became known to the public?
- Is it morally justified to deploy the CHIS and/or UCO(s)?

A number of those who participated in the sub-group that drew up the MoU have since moved on, although not to unrelated work. One of the German representatives, Bernd Rossbach, is now the Director of Specialised Crime and Analysis at INTERPOL. Carol Jenner, one of the UK's representatives in 2004, has apparently followed the path of many former police officers into the world of private security and now works for a private intelligence and investigation firm called IntraOrbis. Sven Lemmer, the Chairman of the MoU sub-group, now works for Europol. In 2010 he worked for both the Analysis and Knowledge Unit, and the Special Tactics Unit. [10]

See: European Cooperation Group on Undercover Activities: Memorandum of Understanding for the use of undercover officers (pdf)

Further reading
- Getting answers from the police on undercover deployments "will be a long process", Statewatch News Online, January 2013
- Parliamentary questions in Germany reveal further information on European police project aimed at enhancing covert investigative techniques, Statewatch News Online, November 2012
- Another secretive European police working group revealed as governments remain tight-lipped on other police networks and the activities of Mark Kennedy, Statewatch News Online, August 2012
- Parliamentary scrutiny unveils undercover "secret police networks", Statewatch News Online, February 2012
- Statewatch Analysis: Using false documents against "Euro-anarchists": the exchange of Anglo-German undercover police highlights controversial police operations by Mattias Monroy, Statewatch Journal, vol 21 no 2, April-June 2011

Sources
[1] German Federal Government, Answer to questions concerning secretly operating international networks of police forces, 31 May 2012
[2] Another secretive European police working group revealed as governments remain tight-lipped on other police networks and the activities of Mark Kennedy, Statewatch News Online, August 2012
[3] Andrej Hunko, End the secretiveness concerning international police groups, 1 February 2012
[4] Parliamentary questions in Germany reveal further information on European police project aimed at enhancing covert investigative techniques, Statewatch News Online, November 2012; Another secretive European police working group revealed
[5] Mark Kennedy: A chronology of his activities, Powerbase
[6] Veit Medick and Marcel Rosenbach, German agents at G-8 summit: Berlin sent five undercover police officers to Scotland, Spiegel Online, 21 February 2011
[7] UK Presidency of the EU, Justice and Home Affairs - Presidency Priorities
[8] Statewatch Analysis: Using false documents against "Euro-anarchists": the exchange of Anglo-German undercover police highlights controversial police operations by Mattias Monroy, Statewatch Journal, vol 21 no 2, April-June 2011
[9] Council of the European Union, The Hague Programme: Strengthening freedom, security and justice in the European Union, March 2005
[10] Mr Bernd Rossbach; Carol Jenner, LinkedIn; Sven Lemmers, 13th International Forum for Public Prosecutors, 15 September 2010