Judge rejects environmental campaigner’s bid for undercover policing inquiry in Scotland

A judge in the Court of Session ruled that the decisions by the then Home Secretary Theresa May and Cabinet Secretary for Justice Michael Matheson were not irrational.

Plane Stupid

Lady Carmichael heard that the petitioner Matilda Gifford was a member of the Plane Stupid campaign group, which protests against climate change and environmental degradation caused by the airline industry and which was a victim of undercover policing in Scotland.

She lodged a petition for judicial review challenging two decisions; firstly, the decision of the UK Government refusing to amend the terms of reference of the Mitting inquiry into undercover policing (UCPI) so as to cover the activities of English police forces in Scotland and the activities of Scottish police forces; and secondly, the decision of the Scottish Government not to set up a public inquiry in relation to these matters.

The court was told that the petitioner was arrested in 2009 following a protest at Aberdeen Airport and was questioned about her membership of Plane Stupid, which was infiltrated by police after that protest, with officers from Strathclyde Police deployed as undercover agents to spy on activist groups.

After she was released she returned to the police station to pick up keys which had not been returned to her, and when she did so she was invited in for a “chat” with two individuals who tried to obtain her assistance as an informant as to the activities of Plane Stupid.

A further two meetings took place between the petitioner and these individuals, in which they made further attempts to obtain her assistance and hinted that she would be paid for information.

The petitioner recorded the meetings and transcripts were published by The Guardian newspaper.

One of the individuals met the petitioner briefly in the street and told the petitioner that if she did not cooperate in providing information she might later find herself in prison.

The petition further stated that Mark Kennedy, then calling himself Mark Stone - an individual whose activities have become the subject of a great deal of publicity and which are to be investigated by the UCPI - attended an activists’ workshop held by the petitioner and organised by Plane Stupid in August 2010, the purpose of which was “how to resist police infiltration”.

‘Right to the truth’

The petitioner claimed that she did not yet know the full scale of this undercover police activity directed against her and others, and separately against Plane Stupid and other activist groups, and that, therefore an independent inquiry into undercover policing was required.

In 2015 the Home Secretary established the UCPI under the Inquiries Act 2005, but its remit was “to inquire and report on undercover police operations conducted by English and Welsh police forces in England and Wales” and did not extend to Scotland.

Despite representations from the Scottish Government’s Cabinet Secretary for Justice, the Home Office refused to extend the scope of the inquiry, following which the Scottish Government announced a decision to direct a strategic review of undercover policing in 2016.

Her Majesty’s Inspectorate of Constabulary in Scotland’s (HMICS) report, which was not published until February 2018, recommended that Police Scotland should establish a formal process with forces in England and Wales for the reciprocal notification of cross-border undercover operations, but concluded that there was no evidence of the sort of behaviour by Scottish police forces that led to the establishment of the undercover policing inquiry.

On the basis of those findings, earlier this year, the Scottish Justice Secretary announced that he would not be establishing a separate inquiry in Scotland because it was not necessary or in the public interest.

On behalf of the petitioner it was submitted that the respondents’ decisions were “unlawful interferences” with her rights under the European Convention on Human Rights (ECHR).

It was argued that the decisions were incompatible with the “right to the truth”, which the Strasbourg court had recognised.

They were also incompatible with the petitioner’s right to a private life under Article 8 and her right to freedom of expression under Article 10.

The decisions were said to be incompatible also with her right not to be discriminated against in the enjoyment and protection of other Convention rights; Article 14 read with Articles 8, 9, 10 and 11, on the basis there was “geographical discrimination” between victims of undercover policing located in Scotland and those located in England.

In a written opinion, Lady Carmichael said: “Surveillance by the police undoubtedly falls within the ambit of Article 8. Actions of certain types taken by the police in the course of surveillance may violate the psychological integrity of individuals.

“The present case involves no allegation of violence, or harassment, or racially motivated conduct…To infer a duty to direct that there be a public inquiry in the circumstances of this case would require a significant extension of the reasoning… The petitioner has not demonstrated that either respondent has acted incompatibly with her Convention rights on this basis.”

The judge concluded: “I considered the Convention rights challenges directed against the first respondent on their merits, as there was no point of distinction between the arguments made against the first respondent and those made against the second respondents, and I have rejected those challenges on their merits.”