It will instead be heard in a Bullshit Stalinist Tribunal. The police can make up whatever evidence they like (and omit whatever incriminates them). The complainants do not get to see the evidence, do not get to be in the court, do not get given the reasons for the verdict, and have no right of appeal.
Whilst Twitter lit up with outrage that the case had been thrown out, The Guardian saw it as a 50/50 thing with a subheader saying
Judge rules half of the women's cases can be heard in open court but half must be first heard by secret tribunal
Neither is true. I'll try to explain what, to the best of my understanding, today's judgement is, and also what it isn't.
Firstly, it's not just about one group of women, and not just one neat case. There are two main elements to the claims.
1 - Human rights. The right to privacy and the right to freedom from degrading and inhumane treatment have been ours since the European Convention on Human Rights was signed in the early 1950s. Enforcing them, however, was another matter. It took a long and expensive case at a court in Strasbourg. In 1998 the Human Rights Act made them enforcable in UK law. The guff against the Act in the Tory press is a decoy; it granted no new rights, just extended their effectiveness so that rights weren't just for the rich.
Though the dozen people suing the police had similar experiences, only the six people whose relationships occurred after the Human Rights Act 1998 came into force have a human rights claim in the UK courts. The other six were not part of today's judgement.
2 - Common law. There is quite a list of these claims including assault, deceit, negligence and misfeasance in public office. All the claimants are suing for these. Those cases will (hopefully) be heard in the High Court at a later date.
First bit clear? Right.
When the Human Rights Act came into force the government invented Investigatory Powers Tribunals. These were designed to hear any cases involving surveillance and espionage. They realised that spying intrudes into people's lives, and that revealing details of spy missions and methods may jeopardise future work of that kind and possibly place those involved in serious danger.
The police argued that the entire undercover cop case should be struck out, and if not then it should be entirely heard in such a Bullshit Stalinist Tribunal. The idea that these activists may unleash deadly carnage if they find out the details of what happened to them is laughable. But even that is not quite as absurd as the idea that the police need to protect their secrecy in case we find out that Mark Kennedy, Marco Jacobs and all the others were undercover officers.
The claimants say that the relationships were unlawful, and that the proper place to hear the evidence and weigh it up would be in a place where all evidence can be heard by both sides, such as the High Court.
The Regulation of Investigatory Powers Act has clear rules about authorising most aspects of surveillance, yet says nothing about authorising long-term intimate relationships. Where do we turn for legal instructions?
Displaying all the grasp of reality you'd expect from someone at the unquestioned top of a hierarchy, today's judge, Mr Justice Tugendhat, decided that fiction should guide us in deciding whether events in real life are normal and justified.
James Bond is the most famous fictional example of a member of the intelligence services who used relationships with women to obtain information, or access to persons or property. Since he was writing a light entertainment, Ian Fleming did not dwell on the extent to which his hero used deception, still less upon the psychological harm he might have done to the women concerned.Presumably this means the complainants should watch Mission Impossible to find out what happens next in their case. Perhaps when Marsellus Wallace's boys get medieval on that cop's ass it is, by virtue of its fictional depiction, giving us permission to do the same with other police officers. Or perhaps Star Wars lends credence to the view that a long time ago in a galaxy far, far away justice was meted out with light sabres.
But fictional accounts (and there are others) lend credence to the view that the intelligence and police services have for many years deployed both men and women officers to form personal relationships of an intimate sexual nature (whether or not they were physical relationships) in order to obtain information or access.
Anyway, among such ramblings the judge made three important rulings today.
1 - The common law claims should not be heard in a Bullshit Stalinist Tribunal, they should be heard at the High Court. This is good.
2 - The human rights aspects of the claim should be heard in the Bullshit Stalinist Tribunal.
3 - Crucially, the Bullshit Stalinist Tribunal goes first. It alone gets to rule on whether relationships breached the claimants' human rights, and they will also decide whether the relationships were lawful or not.
Even though it's just a court-shaped glove puppet on the police's hand, the Bullshit Stalinist Tribunal's verdict could well influence the High Court's decision on the remainder of the case. It may even persuade them to strike out the case entirely.
As the adage says, justice must not merely be done, it must be seen to be done. The fact that a Bullshit Stalinist Tribunal can make a decision for reasons that claimants don't even get told, let alone get to question or confront, means what it delivers cannot be justice. It has no place in the pantheon of the judiciary.
What it decides will cast a shadow over the rest of the case. So, contrary to what the Guardian suggest, it's not half and half. And contrary to what Meatloaf asserts, two out of three actually are bad. The playing field just got tilted today and it remains to be seen how many of the players roll to one end.
2 comments:
If Mark Kennedy is James Bond, presumably this means us environmentalists are Bond villains. So my new years resolutions is to get a white cat and to liberally apply gold paint to anyone who annoys me. A trap door above a piranha pool will look lovely in the front room. I might also buy a small Pacific island and populate it with an army of loyal minions in identical yellow jumpsuits.
The judge is clearly an arse.
Jonathan Freedland in the Guardian
"But that the judge thought to mention Bond is perhaps revealing. For even those who would defend Ian Fleming's character from charges of misogyny would concede that he often regards women as disposable. And that is the crux of this case, brought by a group of women who believe their innermost lives were regarded as so valueless they could be used by covert police as mere props, devices to shore up agents' cover stories and prove they were good-faith activists rather than frauds.
"Almost every undercover cop so far identified found himself a lover in the group under surveillance: it was the norm, a standard part of their tradecraft.
This is a question for the police, whose view of women as so dispensable surely suggests a kind of institutional sexism, but also for the state itself. Either it knew or it didn't know what these men were up to, apparently in the service of the crown: both possibilities are indefensible. There is no licence to kill, and there can be no licence to break human hearts, to inflict lasting psychological trauma. The James Bond stories are thrillers, not an instruction manual for an unaccountable state."
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