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Undercover policing inquiry: dead babies’ names stolen by police may be kept secret 19.8.16

Country/Region

01 August 2016

"Parents of dead babies whose identities were stolen by undercover policemen might not be told if their children’s names were abused.

 

A ruling by the Pitchford Inquiry, set up to examine undercover policing in England and Wales, says that anonymity and protection for police officers might preclude parents being told the truth."

See: Dead babies’ names stolen by police may be kept secret (The Ferret, link)

The ruling in question was published on 18 July, setting out the reasoning behind the decision in full. A summarised version is provided below.

The ruling: Undercover Policing Inquiry: Preliminary issue: Disclosure of deceased childrens' identities - Ruling (pdf):

"The question I have to consider is whether the Inquiry has a positive obligation under Article 8 to disclose to interested persons information that closely concerns their right of respect to private life...

Whether an obligation exists to make disclosure of the particular information requested depends on the striking of a fair balance between the interests of the individual and any countervailing interests of the public...

Twenty-three families have already expressed a wish to know whether a deceased child’s identity has been used by the police for covert purposes. It is likely that there will be other families who, if they were made aware of the Inquiry’s investigation into the subject, would wish to make representations..."

Pitchford subsequently establishes three "categories" of families with an interest in the issue:

• Category 1: "those parents or close relatives of a deceased child whose identity has been used by a police officer for covert purposes and a provisional decision has been made not to impose a restriction order preventing publication of that information... the family, whether it has expressed an interest or not, should be approached, if possible, and informed, in as sensitive a manner as can be achieved, of the Chairman’s decision."
• Category 2: "those who have expressed an interest in knowing whether their deceased child’s identity was used by the police for covert purposes and in respect of whose deceased child the Chairman has made a restriction order prohibiting disclosure of the covert identity. Counsel are agreed that in these circumstances no information can be provided to the family."
• Category 3: "those who have expressed an interest in knowing whether their deceased child’s identity was used by the police for covert purposes and the Inquiry finds no evidence that it was."

The ruling continues:

"Counsel to the Inquiry point out that if a pattern emerges that category 3 families are informed that their deceased child’s identity was not used for covert purposes, it will quickly become apparent that families in categories 1 and 3 are provided with an answer to their request for information while families in category 2 are not; accordingly, the remainder will infer (or speculate) that they fall within category 2, namely among those in respect of whom a restriction order has been made to prevent disclosure of an undercover identity. If that were to be the outcome, the purpose of making the restriction order would be or would likely be defeated."

Pitchford subsequently states that it is necessary to assume that he will make some restriction orders preventing the disclosure of the fact that the cover name of an undercover officer "is also the real identity of a deceased child". This may be because:

"the disclosure of an undercover identity is attended by an unacceptable risk of exposure of the officer’s true identity which, in turn, would create an unacceptable risk of serious harm to the officer or his family."

In this case:

"I will need to make restriction orders that are effective to prevent disclosure of the information that should remain secret. If to release information that a deceased child’s identity was not used for covert purposes were to have the effect of risking revelation of a deceased child’s identity that was used for covert purposes, then the restriction order made in respect of the latter’s identity would be undermined."

Thus, while "it is clear that there is a strong public interest in providing an answer to concerned families, if possible and as soon as possible," Pitchford is "bound to conclude that serious public interest concerns arise."

He concurs with the view of the Inquiry's legal team:

"a cautious approach by which the Inquiry first acquires the best possible factual overview in which possible consequences are better understood and then considers a form of disclosure that minimises the risk of damage to the public interest, perhaps on a once-for-all occasion."

This is also the approach favoured by the Metropolitan Police. The representatives of the families of the deceased children whose names have been used by undercover officers (or whose names may have been used by undercover officers) favour - unsurprisingly - greater transparency.

There is "overwhelming advantage [in] caution and postponement of a decision" regarding disclosure to all affected families as soon as possible, says Pitchford. The advantage is:

"(a) avoidance of the unforeseen risk of serious harm and
(b) the ability of the Inquiry, in the meantime, to acquire an overview of

(i) the number and nature of restriction orders needed to protect the identity of and harm to undercover officers,
(ii) the risk of an identifiable pattern emerging that undermines those orders and
(iii) the terms of or procedure for disclosure that might best avoid or reduce the risk of harmful inference or speculation."