Opening statement by Metropolitan Police counsel (Mr. Skelton) at the Undercover Policing Inquiry's T1P3 hearings focusing on SDS managers 1968-1982. The MPS calls for additional evidence from A8, Security Service (MI5), and Special Branch C-Squad, requests expert historians, and challenges the scope of the inquiry's investigation. Chair Sir John Mitting responds robustly, declining historical experts and defending his investigatory approach.
00:09:55 mr skelton
00:10:03 so before i start it may help if i make clear that for the most part this oral opening statement follows the structure and contents of the mps's written opening which i know you have
00:10:18 opening which i know you have however it does admit several quotations and in a few key respects advances some additional points so this is the third phase uh p3 of the inquiry's first tranche t1 in which it will hear evidence from some of the
00:10:32 will hear evidence from some of the sds's managers during the years 1968 to 1982.
00:10:34 1982. this period includes the establishment of the sds on the 30th of july 1968 in response to the grovino square demonstration against the vietnam war on the 17th of march 1968
00:10:48 the 17th of march 1968 and its evolution into a long-term secret mps special branch which i will call mpsb unit for gathering intelligence on a wide range of public order subversion
00:11:01 wide range of public order subversion and interrelated issues it also includes the first use of the identities of deceased children by undercover officers who i will call ucos in the sds the first inappropriate sexual relationships
00:11:16 first inappropriate sexual relationships by ucos and the first engagement of ucos in criminal activity and the criminal justice system so the mps has previously previously set out its position in respect to all of these issues together with wider generic themes
00:11:29 themes what went wrong what has changed in its opening statements for t1p1 and t1p2 it is also apologized to the women who were deceived into sexual relationships
00:11:43 were deceived into sexual relationships by undercover police officers and to the families of those whose children's identities were used by the sds and so those apologies are affirmed again now
00:11:50 again now the focus of the written and oral statements for this phase is not however on the substantive issues that arise
00:12:02 on the substantive issues that arise within t1 rather it's on the process and scope of the inquiry's investigatory work
00:12:10 work first for the inquiry to fulfill its terms of reference to examine the motivation for undercover police operations in practice and to make findings in respect of the justification for the sds's work it must obtain witness evidence from
00:12:23 it must obtain witness evidence from officers who served in the two bodies for whom the sds primarily gathered intelligence first a8 uniform branch which was responsible for public order policing and second the security service which
00:12:34 and second the security service which was responsible for protecting the uk from subversion it should also obtain from former officers who served in
00:12:45 officers who served in evidence from former officers who served in c squad the mpsb unit which was the principal conduit of sds intelligence and which directed the general focus of the sds's work collected and assessed its intelligence reports and disseminated to a8 and the security
00:12:58 disseminated to a8 and the security service the intelligence which they required
00:13:02 required some of this work has begun but more sir is needed
00:13:04 is needed second as the nps made clear in its opening statement for the t1 p1 hearing
00:13:15 opening statement for the t1 p1 hearing in 2020 it is essential that the inquiry explores and understands the historical political and policing context of the work of the sds as it evolved throughout the 1970s and thereafter as the mps went on to say in its second opening for the t1p2 hearing in 2021
00:13:33 opening for the t1p2 hearing in 2021 this understanding can best be must be based on evidence not submissions and can best be achieved by calling independent neutral expert witnesses to give evidence of public hearings third the inquiry should provide details of any relevant reading
00:13:46 of any relevant reading of open source material that you sir have read during your appointment any such information particularly background and contextual evidence
00:13:58 background and contextual evidence should be then ventilated openly and where necessary tested publicly fourth
00:13:59 fourth the inquiry should ensure that its investigation of the origins of the use of deceased children's identities is comprehensive and includes whether their use
00:14:12 and includes whether their use originated outside the sds and predated its work
00:14:13 its work so finally at the conclusion of this statement the mps set out sets out its preliminary response to the inquiry's proposal to produce an interim report and to the question of how the inquiry
00:14:26 and to the question of how the inquiry should approach its consideration of the laws and standards that were applicable at the time to the activities of the sds mpsb the security service and the government
00:14:39 so i turned now to the inquiries terms of reference and list of issues the inquiries terms of reference directed in part to investigate the role and contribution made by undercover
00:14:50 and contribution made by undercover policing towards the prevention and detection of crime to examine the motivation for and the scope of undercover police operations in practice
00:15:00 practice to ascertain the state of awareness of undercover police operations of her majesty's government to identify and assess the adequacy of the justification authorization operational governance and oversight of undercover policing
00:15:15 undercover policing and to investigate whether and to what purpose extent and effect undercover police operations have targeted political and social justice campaigners in furtherance of those terms of
00:15:29 in furtherance of those terms of reference the inquiries published a list of issues for its investigations uh its investigation of um the sds in module one
00:15:33 one and that comprises the examination of the deployment of sds undercover officers in the past their conduct and the impact of their activities on themselves and others and it includes general questions
00:15:45 and it includes general questions relating to the targeting and initial authorization and the prevention and detection of crime and focused questions relating to the justification and value of any uco reporting on justice campaigns stephen
00:15:57 reporting on justice campaigns stephen lawrence campaign and dwayne brooks obe elected politicians political organizations and activists trade unions and trade union members social and environmental activists for module 2a which involves
00:16:11 activists for module 2a which involves managers and administrators from within the undercover policing units the inquiry has published a list of issues which contains similar questions together with a further question relating to what if any purposes when processes were in place to review the
00:16:23 processes were in place to review the ongoing justification for deployments and a set of specific questions relating to the relationship between the stx and the security service
00:16:36 the security service similar questions have been included in the inquiries draft list of issues module 2b
00:16:38 module 2b which was published for consultation purposes on the 7th on the 19th of april 2022.
00:16:48 2022. so the nps recognizes the importance of these issues as it stated in its first opening statement in 2020 it also accepts that questions over whether specific
00:17:01 questions over whether specific deployments and actions occurred or were justified would depend on the facts in each case
00:17:02 each case it follows that they can only be answered once those facts are known the mps will scrutinize all the evidence
00:17:15 the mps will scrutinize all the evidence that the inquiry obtains and to be clear it will not seek to justify the indefensible and will acknowledge failings where it is appropriate to do so but as i will now go on to explain its present concern is to ensure that
00:17:32 its present concern is to ensure that those matters are properly investigated by this inquiry so that any resulting findings are reasonable fair and properly contextualized before doing so may i sound a note of caution on behalf of the mbs in respect of the reliance being placed in the
00:17:44 of the reliance being placed in the opening statement of the category h core participants on the judgment of the investigatory powers tribunal the ipt in kate wilson's case that judgment focused on the deployment of one officer mark kennedy in a
00:17:56 of one officer mark kennedy in a different policing unit a national public order intelligence unit over 20 years after the t1 period
00:18:08 years after the t1 period the tribunal's judgment on the legality of that deployment and the concessions made by the npcc and the mps in that on that issue are obviously instructive but they should not be seen as
00:18:22 but they should not be seen as establishing sweeping legal principles which render all public order and subversion related undercover deployments wrongful or unlawful over a 50-year period
00:18:33 50-year period on the contrary sir the judgment is as the tribunal itself recognized fact sensitive
00:18:34 sensitive and although this inquiry is not determining questions of legal liability it will need to establish the relevant facts for itself and thereafter to make its own evaluation of them by reference the
00:18:48 evaluation of them by reference the principles and standards that have been set out transparently so all participants are aware of them so i turn now to the responsibilities of mpsb
00:18:59 mpsb as the inquiry's focus has turned to the management of the sds in the period 1968 to 1982 so greater attention is now being given to the relationship between the sds and mpsb
00:19:14 the sds and mpsb the relationship between npsb and the mps more widely the relationship between npsb and the security service
00:19:25 security service the respective responsibilities of mpsb and the security service and the role and responsibilities of central government in particular the home office and the cabinet office the inquiry has designated many of these issues to its tranche 6 and modules 2b
00:19:41 issues to its tranche 6 and modules 2b and 2c and the mps is reassured that it now appears to be accepted that investigation of these issues is a necessary part of the evaluation of what was happening on the ground within deployments
00:19:54 exploration of these issues is essential to meet the terms of reference not just the element asking about awareness outside the police but also to fairly assess the contribution made by undercover policing the motivation for
00:20:05 undercover policing the motivation for it its justification and its oversight this is as true for the fair assessment of the sds in the 1968-1982 period trans-1 as it is for
00:20:20 1968-1982 period trans-1 as it is for other parts of undercover work allocated to other tranches the work of mpsb like that of all police special branches was directed towards
00:20:31 special branches was directed towards public order policing and the provision of specific assistance to the security service
00:20:34 service these responsibilities were set out in the terms of reference prepared in collaboration with the security service and other interested parties and agreed with the association of chief police officers
00:20:46 police officers of england and wales akpo in 1970
00:20:52 1970 under the heading function these stated special branches responsible for acquiring security intelligence both secret and overt a to assist the chief officer in preservation of public order and b
00:21:02 and b as directed by the chief officer to assist the security service in its task of defending the realm from attempts at
00:21:15 of defending the realm from attempts at espionage and sabotage and from actions of persons and organizations which may be judged to be subversive of the security of the state the wording of the second of mpsb's responsibilities echoes that of the security services then charter the 1952 maxwell 5 directive
00:21:31 maxwell 5 directive and i'll read a small portion of that the security service is part of the defense forces of the country its task is the defense of the realm as a whole from external and internal dangers arising from attempts of espionage and sabotage or from actions
00:21:48 espionage and sabotage or from actions of persons or and organizations whether directed from within or without the country which may be judged to be subversive of the state
00:21:59 the 14 specific tasks of special branch from 1970 included section 3 a to provide the chief officer with intelligence affecting public order and on behalf of the chief office server security service with intelligence affecting national security b
00:22:10 b sorry d in consultation with the security service to collect process and record information about subversive or potentially subversive organizations and individuals
00:22:21 individuals f
00:22:25 f to investigate any subversive background to this word i think is illegible something demonstrations and breaches of public order and in consultation with the security service to certain industrial disputes
00:22:40 industrial disputes terms of reference go on to state it is important that special branches should have a clear idea of what constitutes persons and organizations which may be judged to be subversive of the security of the state broadly speaking these are any
00:22:57 broadly speaking these are any organizational individual whose purpose is the undermining or overthrow of the established democratic order so it is clear from the written written opening statements of council to the inquiry and from council for several non-state corps participants that critical
00:23:10 corps participants that critical questions arise as to what constituted subversion for the purpose of the security service the uk government metropolitan peace special branch in the 1960s and the 1970s
00:23:23 the individuals and groups on whom intelligence was gathered reasonably judged by mpsb by the security service or by the uk government to be subversive or potentially subversive
00:23:37 or potentially subversive at the time by the standards of the time or
00:23:38 or and or were they reasonably judged to present a threat to public order at the time by the standards of the time or if they were reasonably judged to be subversive or to
00:23:49 subversive or to present a threat to public order was there sufficient just justification for gathering intelligence on them by means of undercover deployments
00:24:02 means of undercover deployments so answering these questions requires careful consideration of what was happening
00:24:07 happening sociopolitically 40 to 50 years ago and of the values and the views of the government the public and the police at that time
00:24:14 that time as council for several non-state corps participants also rightly point out these questions also engage important issues as to the proper role and limits
00:24:25 issues as to the proper role and limits of the state in protecting its citizens and itself from harm and the proper place of the police in assisting with that protection
00:24:36 assisting with that protection the nps doesn't seek to evade these questions all the answers they may produce
00:24:38 produce but its concern as throughout the inquiry is to ensure that to the extent that they are looked at this is carried out fully fairly and mutually
00:24:50 out fully fairly and mutually ensures this means that appropriate evidence must be sought and tested the first type of evidence that the inquiry should seek is historic documentation relating to the government's interest in subversion in public order
00:25:06 forgive me a moment someone entered trying to enter the room uh ignore my signal please thank you sir i'm glad it wasn't me at this time as now the security service operated under the supervision and direction of the home secretary who in turn was answerable to the prime
00:25:18 who in turn was answerable to the prime minister and their cabinet however like other agencies in whitehall its lines of reporting were complex and subject to change
00:25:29 change in 1972 for example it produced a report on subversion in the uk 1972 for the cabinet secretary burke trend at the behest of the prime minister edward heath
00:25:36 heath and later took part in the new interdepartmental group on subversion and public life notably this was chaired by james waddle later sir james waddle the deputy under
00:25:49 later sir james waddle the deputy under secretary of state home office who from 1968 to 1964 was also personally responsible for approving the sds's annual home office funding the group's attendees included the
00:26:00 the group's attendees included the deputy assistant commissioner for mpsb and officials from the security service the cabinet office the foreign and commonwealth office as it then was the scottish office and the department of employment
00:26:13 employment many of the inter-departmental groups reports and minutes together with us associated correspondence and memoranda have now been declassified and are publicly available at the national archives in queue other classified documents may be
00:26:25 other classified documents may be directly available to the inquiry from the cabinet office or other government departments these documents are directly relevant to any understanding of the government's interest in and
00:26:42 of the government's interest in and monitoring of subversion and potential subversion in the 1970s including through the work of the sds further documents may also be available that demonstrate the government's interest in public order issues throughout the t1 period where the nps
00:26:55 throughout the t1 period where the nps is located and holds copies of relevant documents these will of course be provided to the inquiry however these are not nps documents and the mps has no more access to them than the public and of course not all of the documents are
00:27:09 of course not all of the documents are publicly available at keyword elsewhere therefore the inquiry is invited to exercise its powers statutory powers to obtain all relevant documents directly from the cabinet office and the government
00:27:20 government the second type of evidence that the inquiry should seek is witness evidence 13 former sds managers from the 1968 to 1982 period have provided witness
00:27:35 1982 period have provided witness statements to the inquiry of whom seven are providing evidence at this public hearing
00:27:39 hearing their evidence makes clear that the sds worked in furtherance of mpsb's responsibilities for its two primary intelligence customers a8 the uniform
00:27:51 intelligence customers a8 the uniform branch of the st of the mps responsible for public order policing and the security service the former like the sds was set up specifically in response to the growing square demonstration on the 17th of march 1968.
00:28:06 march 1968. for most of the 1970s the mpsb unit with primary responsibility for meeting the intelligence requirements of a8 and the security service was c-squad which specialized in intelligence on domestic extremism
00:28:18 domestic extremism communism and subversion and public order
00:28:22 order the sds was originally an independent unit within npsb sitting outside the
00:28:33 unit within npsb sitting outside the operational squads a b c d e f for ports however from late 1972 or early 1973 it became part of c squad and from july 1974 it was part of the newly created s squad which was formed to coordinate the various technical and support functions performed by special branch
00:28:50 performed by special branch so this is relevant to any understanding of the sds's role and how the squad sat within mpsb's wider work c squad officers are also directly answered directly answered the security services specific requests for
00:29:05 services specific requests for information and disseminated hundreds of relevant sds intelligence reports to them at box 500 the magnitude and the unremitting nature of c squads and the npsb's work for the security service and for a8 is
00:29:16 security service and for a8 is illustrated by a memorandum written by commando commander rolo watts following a meeting between npsb and the service on the 11th of october 1976
00:29:29 on the 11th of october 1976 and this states a paragraph three i quote
00:29:34 quote chief superintendent r wilson then spoke about manpower difficulties on his c squad
00:29:36 squad theoretically 60 officers usually reduced by other commitments to about 30 at any one time one given time
00:29:50 at any one time one given time despite this however between 250 to 300 inquiries were completed for box 500 every month he stated however that he was bound by the primary objectives of the police service to give priority to inquiries
00:30:02 service to give priority to inquiries which related to matters of public order mr watts emphasized this point by em explaining that special branch were responsible for something in the region of 600 to 700 pre-demonstration assessments every year for the information of uniform branch
00:30:17 for the information of uniform branch it's clear from the manager's evidence that the sds did not set the intelligence requirements that drove the tasking of its undercover deployments
00:30:28 tasking of its undercover deployments nor for the more for the most part did it pass intelligence directly to its ultimate customers this process was directed and mediated primarily by c-squad based on the
00:30:39 primarily by c-squad based on the requirements of a8 public order and the security service subversion etc
00:30:44 etc and the mpsb b squad irish nationalism within c squared in the early 1970s detective inspectors occupied specific posts relating to the security service the ultra left special demonstrations and the communist party
00:30:59 and the communist party the sds also didn't assess in the formal sense of collate and analyze the intelligence that its officers gathered intelligence relating to public order was inseminated elsewhere for analysis
00:31:10 was inseminated elsewhere for analysis in action for example it was converted by c squad into sanitized pre-demonstration assessments which i've referred to also known as threat assessments for the benefit of a8 although urgent public or intelligence
00:31:22 although urgent public or intelligence could be telephoned directly to a8 at a high level intelligence related to subversion was passed by sea sport in its original unsanitized form directly to the security service and in respect of the
00:31:41 security service and in respect of the specific intelligence work undertaken by the sds between 1968 and 1982 the task of producing a comprehensive objective assessment of its justification and value on a granular level deployment by deployment or report by report
00:31:48 by report is impossible the exercise of asking the undercover officers
00:31:56 officers their managers and their managers to do so 50 or 60 years 40 or 50 years after the index events is inherently problematic and unfair the events are too long ago and the causative pathways and the
00:32:10 causative pathways and the counterfactual scenarios are too obscure and too complex any attempt to assess the justification and the value of intelligence retrospectively would be an exceptionally difficult task
00:32:27 exceptionally difficult task this is partly because intelligence work may be justified because intelligence that was collected had a latent or potential value but this value never subsequently materialized for example details of a plan to create public order which did not occur or the name of an individual who associated with a dangerous
00:32:38 who associated with a dangerous anarchist group but who left and was never heard of again it's also because knowledge of subsequent events inevitably colors the evaluation of earlier events
00:32:49 earlier events to take an obvious example it's now known that none of the groups which advocated the end of capitalism or democratic society in the 1960s or the
00:33:01 democratic society in the 1960s or the 1970s came close to succeeding in their aims
00:33:10 aims and so governmental and police interest in them at the time may to modernize appear alarmist or anti-democratic or quaint
00:33:14 or quaint but if notwithstanding these points the inquiry does intend to make findings about justification and the value of sds deployments in the t1 period then in the interests of fans the inquiry must provide the core participants with a
00:33:27 provide the core participants with a clear indication of how it intends to approach these matters this must be given in advance of the closing stages so that proper consideration can be given to the question of whether sufficient evidence has been sought
00:33:39 evidence has been sought the inquiry should indicate the level of granularity at which it proposes to make findings about value justification
00:33:50 findings about value justification authorization for example whether it proposes to make findings about the value of deployments into specific groups or reporting on specific individuals or reporting on specific events
00:33:58 events or reporting of specific types of information during the t1 period the inquiry also needs to set out transparently for all core participants the test it will apply and the factors it will consider
00:34:11 it will consider to be relevant to establish value and justification where these may be contentious or involve questions of law these matters should be decided by the inquiry only after hearing submissions from the court participants
00:34:24 from the court participants additionally sir for the inquiry's findings on these issues to be fair it must ask former officers of npsbc squad a8 uniform branch and the security service directly
00:34:40 service directly to explain the justification for seeking intelligence on those groups and individuals and
00:34:44 and what value the resulting intelligence had to their work
00:34:51 they should also explain why intelligence needed to be sought using undercover deployments rather than by some other means available to them for example open sources such as public
00:35:04 for example open sources such as public meetings and publications or alternative closed sources such as informants and surveillance those critical questions cannot be answered definitively and fairly by the
00:35:16 answered definitively and fairly by the sds's former managers as they themselves have said and to rely on their opinion evidence alone alongside the available documents would lead the inquiry into error that is particularly so given the highly relevant contemporaneous documentary evidence specifically sds reporting on
00:35:31 evidence specifically sds reporting on public order that was not passed to the security service and pre-demonstration reports or threat assessments produced by mpsb for the benefit of a8 haven't been located
00:35:45 been located it is understood that the inquiry is now intending to obtain witness evidence from former managers in npsbc squad this is welcome and the mps will do everything it can to facilitate the provision of this evidence to the
00:35:57 provision of this evidence to the inquiry and has already identified some potential witnesses to the inquiry
00:36:03 the evidence they produce will be of limited value however if the inquiry doesn't at the same time seek and obtain evidence from those on whose behalf sea squad gave or overall direction to the focus of sts infiltrations
00:36:15 focus of sts infiltrations and collected and assessed and distributed the intelligence it gathered evidence points the fact that c squad was a conduit between the sds and its ultimate customers
00:36:30 ultimate customers and that it deliberately kept the sds in the dark for the sake of protecting its ucos about it about intelligence it received from other sources including the security service
00:36:40 service in the case of the security service more is needed than a composite corporate statement from witness zed who has no direct experience of any of the events in question unsurprisingly such evidence is of limited value
00:36:51 limited value for the reasons i've given it is vital that the inquiry gains a proper and full understanding of the role and
00:37:02 understanding of the role and responsibility of the security service its position as the link between the government and mpsb and its relationship with mpsp therefore statements should be sought from contemporaries officers who requested intelligence from mpsb on
00:37:15 requested intelligence from mpsb on subversion or security related matters assessed the resulting product and reported directly to the government the government through the home office and the security service required the
00:37:29 and the security service required the mpsb and the sds to obtain intelligence on particular groups movements issues and individuals this should be made clear in witness evidence so the inquiry can fairly assess the justification for the sds's work
00:37:37 work and its resulting value if the inquiry intends to find that the specific aspects of the usds work were not justified or valuable then these criticisms must be put to
00:37:49 then these criticisms must be put to those people and bodies who requested relied on and or funded the sds's work not simply sds the ses officers themselves the inquiry will no doubt wish to
00:38:03 the inquiry will no doubt wish to consider carefully to whom it must in due course give the opportunity to respond to such criticisms during the warning letter process for its interim or its final reports
00:38:14 or its final reports the work of the security service insofar as it intersected directly with that of npsb and the sds during the index period is clearly within the inquiries terms of reference as user has previously stated it's not understood that the service
00:38:26 it's not understood that the service itself is thought to argue otherwise the investigatory requirement for proper wix evidence which the mps first identified in its opening statement for t1p1
00:38:40 t1p1 is therefore obvious and unanswerable and further there are no procedural reasons why such statements should not be solved
00:38:44 be solved former security service officers are former servants of the state and so no different from former undercover police officers and their managers if their evidence is relevant and
00:38:55 if their evidence is relevant and necessary then it should be obtained without fear or favor finally sir in respect of additional evidence
00:39:03 evidence the inquiry must contextualize the work of the sds by reference to the historical political legal and policing circumstances of the time only by doing so can the reasons for the governments and the commissioners
00:39:17 governments and the commissioners interest in public disorder industrial unrest and subversion be properly understood together with the mpss and the security services resulting requirements for intelligence relating to those matters and the decision to use undercover
00:39:31 and the decision to use undercover deployments to obtain that intelligence none of the witnesses called during transform including the civilian witnesses and the former sds officers and their managers have been able to provide independent impartial or comprehensive accounts
00:39:46 comprehensive accounts of the wider national or metropolitan metropolitan context in which their actions and experiences occurred nor could they have been expected to do so
00:39:51 so they were personally involved in the specific events under scrutiny either as sds officers or as civilians who featured in the sds's reporting
00:40:05 featured in the sds's reporting additionally and understandably after 40 to 50 years some witnesses accounts are incomplete or entirely at odds with those of other witnesses or answered by unanswered by potentially relevant countervailing evidence if it doesn't properly embed its
00:40:16 if it doesn't properly embed its findings within that complex history there is a real danger that the inquiry in good faith but inadequately will assess complex events by reference to a small number of opposing accounts
00:40:32 obvious but important questions which are needed to make sense of the historical concerns and decision-making and relevant to the assessment of the sds's work have not yet been fully and independently answered such questions include one
00:40:44 such questions include one during the period 1968 to 1982 what public disorder was occurring in london and elsewhere in the uk two what was its cause three
00:40:56 three which groups movements or issues were involved
00:41:00 involved four which which groups movements were seeking to cause public disorder four which groups movements were seeking to undermine the security of the state six did the government and other state
00:41:12 six did the government and other state institutions including the police judge those groups or people associated with them to present a threat to public order or the security of the state
00:41:24 or the security of the state in the nps's oral opening for the t1p2 hearing on the 21st of april 2021 it urged the inquiry to contextualize the evidence under scrutiny using written and oral evidence from a suitable academic historian
00:41:39 academic historian its submissions on this issue are quoted in fallout paragraph 42 of the written opening by the mps for this hearing so during the bloody sunday inquiry the tribunal commissioned expert reports from two historians of irish and
00:41:51 from two historians of irish and northern irish history professor paul bu and
00:41:52 and professor paul arthur their evidence together with open source material read and disclosed by the tribunal form the basis for the detailed neutral historical narrative with which
00:42:05 neutral historical narrative with which the inquiry contextualized the events on the 30th of january 1972 in its report such evidence was obviously important to an inquiry in which as in this inquiry national history itself
00:42:16 national history itself was relevant and under scrutiny one of the primary tasks of an expert witness would be to induce at the public hearings relevant evidence about which none of the existing factual witnesses
00:42:31 none of the existing factual witnesses can speak with authority or independence this would include introducing the
00:42:38 this would include introducing the objectives and activities of the various groups and factions that were involved in demonstrations in london or were judged to present a threat to the security of the states during the 1970s such as the international socialists stroke socialist workers party swp and
00:42:50 stroke socialist workers party swp and the international marxist group or img this could be done by reference to contemporaneous material not as yet considered openly by the inquiry such as the socialist worker newspaper which is one historian noted at the time
00:43:04 which is one historian noted at the time had a section entitled where we stand in which the
00:43:09 which the swp set out its calls for mass action by the workers to seize control of the wealth created by them under capitalism and to destroy the system another important task of an expert
00:43:21 another important task of an expert witness would be to identify the scope of the nps's responsibilities and to explain one how public order policing was undertaken at the time and two how intelligence work was conducted in the 1960s and 1970s
00:43:36 conducted in the 1960s and 1970s including how operations were planned and how intelligence was collected assessed shared and filed such evidence is essential for a fair assessment of the sds's work as other inquiries have recognized most recently the brook house inquiry
00:43:50 most recently the brook house inquiry has commissioned and heard evidence from three experts witnesses during its investigation of the mistreatment of individuals detained at the brookhouse immigration removal center this includes evidence on the legislative and policy context of the
00:44:03 legislative and policy context of the use of force in detention centers its governments and oversight and the professional standards applicable at the time of the index events
00:44:13 in their opening for this hearing the category eight core participants and others have raised serious questions about the lawfulness necessity and proportionality of the sds's work during the t1 period and subsequently
00:44:25 the t1 period and subsequently the inquiry is charged with making findings of fact not determinations of civil or criminal liability which are precluded by section 2 1 of the inquiries act 2005.
00:44:36 2005. but the mps welcomes focus on the contemporary in its legal framework within which the sds mpsb and the security service and the government operated
00:44:46 operated which must again
00:44:49 again be assessed by reference to the values and standards of the time and i will return to this issue at the conclusion of the statement one of the tasks of an expert would be
00:45:00 one of the tasks of an expert would be to introduce evidence for which there is no
00:45:02 no surviving factual witnesses from the time
00:45:03 time an example of this is an article on public order policing in the night in july 1975
00:45:11 july 1975 in the addition of the police journal by the then commissioner sir robert mark that called the metropolitan police and political demonstrations
00:45:26 political demonstrations this provides a high level commentary on the complex task of policing political demonstrations in london in 1975 and includes statistics relating to the preceding three years it was first published as a as appendix 8 to the commissioner's 1975 annual report which covered the mps's work in 1974.
00:45:40 1974. all the commissioners annual reports for the period 1968 to 1982 together with mpsb's annual reports have been provided by the inquiry provided to the inquiry they are a valuable source of information and
00:45:54 valuable source of information and evidence about which the mps's work throughout tranche one cannot properly be understood it is all the more important that such documents are introduced into evidence and contextualized by a historian
00:46:08 and contextualized by a historian given that sir robert mark and both his predecessors and successor from this period sir john waldron and sir david mcnee are dead so too are the officers of at the rank of commander and above
00:46:20 of at the rank of commander and above who directly oversaw the work of the sts during this period none of them can now be witnesses to this inquiry the mps isn't seeking to nominate
00:46:32 the mps isn't seeking to nominate specific experts to provide evidence that is a matter for the inquiry assisted by submissions from the core participants however several potential witnesses exist
00:46:42 exist what one is christopher andrew who is the author of several books on the history of intelligence gathered in the uk including the defense of the realm which um counsels the inquiry created from earlier other potential candidates
00:47:00 from earlier other potential candidates are richard aldrich or rory cormack who are co-authors of the black door spy secret intelligence and british british prime ministers both of these publications contain meticulously searched researched accounts of the government's concerns about left-wing subversion and the associated issue of unrest throughout the 1970s and its resulting efforts to
00:47:15 the 1970s and its resulting efforts to monitor the threats these were thought to present at the time the mps urges the inquiry to reconsider the appointment of one or more historical and professional experts it
00:47:26 historical and professional experts it would be most unfortunate if an inquiry of this breadth and importance didn't ensure that the scope of its public work included proper contextual evidence
00:47:38 included proper contextual evidence such evidence is important procedurally in addition for two reasons first
00:47:39 first the expert will be able to draw on any and all relevant material available from public open sources or through the inquiry
00:47:50 inquiry the scope of that material will be much wider than the narrow categories of documents and other material that have been induced in the bundles and inquiries witness hearings this will reduce the burden on the inquiry and its core participants to
00:48:03 inquiry and its core participants to seek out and review such material it will also ensure that the source's ultimate relied on by the inquiry in its reports
00:48:10 reports are as comprehensive and as balanced as possible
00:48:22 possible and as importantly that they are clear to the participants and the public second the expert's evidence will provide a clear structure to the inquiry's consideration of the historical events and practices under scrutiny
00:48:38 scrutiny at present it is not fully apparent how the inquiry is investigating the wider socio-political policing and national security context of the time what sources of information are
00:48:41 are it is being based on or how it intends to construct a narrative out of its investigations evidence from an expert would provide a means of clarifying each of these matters fully and openly it would
00:48:55 matters fully and openly it would identify key facts policies and other considerations in a neutral and independent way these could then be probed and tested during the oral hearings commented on in the core participants closing submissions responded to as necessary during the warning letter process
00:49:09 during the warning letter process and of course ultimately relied on inquiries reports
00:49:15 i turn now sir to the reading that has been done by you as as chairman
00:49:21 it is clear sir that you have read um open source material which provides information that is relevant to the events you are investigating and this includes some or all of the defense of the realm
00:49:33 all of the defense of the realm and the book in the office of chief constable the autobiography of sir robert mark who was commissioner from 1972-1977
00:49:41 it may also include the black door that i have just mentioned and publications on the history of trotskyism the very fact that this reading has been necessary supports the mps's position which i've outlined that this inquiry
00:49:53 which i've outlined that this inquiry requires contextual evidence albeit that such evidence should be induced publicly not privately
00:50:04 not privately the nps and the designated lawyers have asked the inquiry what background reading you have undertaken in respective issues which may bear upon the inquiry's terms of reference inquiry has not as yet provided an
00:50:15 inquiry has not as yet provided an answer to this question and so this is unfortunate because the issue is important
00:50:16 important section 18 of the inquiries act provides that subject to any restrictions imposed by a notice of order under section 19
00:50:28 by a notice of order under section 19 the chairman must take such steps as he considers reasonable to secure that members of the public including reporters are able b to obtain or view a record of evidence and documents given produced or provided to the inquiry or inquiry panel so if you have read books scholarly
00:50:41 so if you have read books scholarly articles or contemporaneous documents that provide information about the issues that are within the inquiry's terms of reference then this should be disclosed to the core participants and the public the relevant material should also be identified and where possible published
00:50:55 identified and where possible published so it can be referred to as necessary in witness questioning submissions opening and closing statements and in due course responses to warning letters made pursuant to rule 13 of the inquiry rules 2006.
00:51:08 13 of the inquiry rules 2006. this applies to all relevant material that has been considered not just material
00:51:11 material upon which the inquiry intends to rely on its reports if the inquiry does not publish your reading this will impede the core participants understanding of and engagement with the inquiry's investigatory work
00:51:24 investigatory work they will remain ignorant of information that may elucidate matters that are under investigation directly or by way of general context as importantly there is a real risk that the inquiries conclusions will be informed by and based on factual
00:51:39 informed by and based on factual assertions and viewpoints that are unknown
00:51:43 unknown or untested or controversial or wrong and this would undermine public confidence in the inquiry and the fairness
00:51:47 fairness of its findings for these reasons the mps respectfully repeats its request that the inquiry clarifies these matters the final matter that i'd like to
00:51:59 the final matter that i'd like to address today is the origins of the use of deceased children's identities the nps has apologized for the hurt caused by the use by the sds of the identities of deceased children
00:52:10 children and it maintains that apology the module 1 special demonstration squad issues list includes the following questions about the origins of the
00:52:23 questions about the origins of the practice of using deceased children's identities under the heading legend building
00:52:24 building question 19 when and why did the practice of using deceased children's identities begin question 20 who devised and or authorized the practice
00:52:37 authorized the practice the answers to these questions are important to the mps and to its former officers they're also important to the inquiries other core participants including those in category f and to the public
00:52:51 in category f and to the public given the national media coverage of the issue and the finding of the home affairs select committee 2013 they should therefore be important to the inquiry if the practice of using deceased
00:53:05 if the practice of using deceased children's identities was first used in the uk by the sds in the early 1970s then that fact should be made clear if it was first used by other state bodies such as the security service and
00:53:16 bodies such as the security service and thereafter adopted by the sds then that fact too is significant and should be made clear it's the clear implication sir of items 19 and 20 of the issues list i have just read out that it would investigate those matters
00:53:27 matters further establishing when the practice began and who devised it is of obvious importance or obvious relevance to any assessment of whether it's used by the
00:53:38 assessment of whether it's used by the sds was standard in undercover work and or reasonable if the origins of the practice cannot be determined at this remove then that is also significant and should be made clear fairness to the sds and its officers and
00:53:49 fairness to the sds and its officers and managers requires that these matters are clarified by this inquiry as a matter of public
00:53:54 public record the designator designated lawyer team which represents most of the former sds officers wrote to the inquiry about this issue on the 18th of october 2021
00:54:07 the 18th of october 2021 and i'll quote from their letter it has been suggested that other agencies egmi5 and the kgb used information about deceased individuals in the creation of cover or
00:54:18 individuals in the creation of cover or fictitious identities and that this may have been informed or inspired may have informed or inspired the sds
00:54:32 informed or inspired the sds operation home report one use of covert identities july 9 2013 part four also refers to operation mincemeat the man who never was and the day of the jackal please would you confirm if the enquiries followed up these suggestions with mi5 or any other agency i.e in
00:54:43 with mi5 or any other agency i.e in order to discover if the practice was more widely used and if so when where how and by whom if the inquiry has done this what information was provided and if not
00:54:56 information was provided and if not please could the inquiry make these make inquiries along these lines so it's understood that the inquiry subsequently confirmed to the dl that it doesn't intend to investigate the origins of the use of deceased children's identities other than by
00:55:08 children's identities other than by asking former sds officers about the practice
00:55:14 practice more recently the inquiry has indicated to the nps that it is clear from the issues list that the inquiry's investigation is confined to the use of the practice by the sds with respect sir the mps disagrees with this
00:55:25 the mps disagrees with this interpretation of the list of issues in short
00:55:26 in short for the reasons given the mps requests that require reconsider its position and investigate this issue fully as indicated in the list of issues there can be no good reason for not
00:55:40 there can be no good reason for not asking the security service whether the practice was used by its officers or agents prior to its use by the sds much of the work of the security service and its past methodologies is now in the public domain most obviously in the
00:55:52 public domain most obviously in the authorized history by christopher andrew to which i referred even if the inquiry's investigations are unwelcome or the answers to them embarrassing or sensitive which is unlikely given their generic nature that
00:56:05 unlikely given their generic nature that doesn't mean that inquiries shouldn't be made
00:56:10 i turn lastly to the conclusion of the statement
00:56:12 statement the core participants have now been told by your council in his opening statement that the inquiry will produce an interim report concerning tranche 1 but the decisions on scope have not yet been finalized
00:56:24 finalized the nps would welcome urgent clarification of the proposed timetable for the production of this report it would also be grateful for a clear indication of the issues that the inquiry intends to address
00:56:37 inquiry intends to address in both its interim and its final reports i.e their scope together with those it doesn't does not intend to address at this stage or is precluded from addressing by law
00:56:48 from addressing by law including matters of civil or criminal liability in respect to the actions of the sds mpsb the security service and the government
00:57:02 the government this will enable the nps to best assist the inquiry by way of further evidence and submissions to be clear the nps's position is that it would not be appropriate or fair for an interim report to include findings about the justification and value of the sts's work in the t1 period
00:57:15 sts's work in the t1 period or the provenance of the use of dcis unless and until the inquiries completed its module 2b and 2c investigations and obtained the specific and contextual evidence identified in this statement
00:57:28 evidence identified in this statement including testing it in live hearings if this is not the inquiry's position the mps would be grateful for confirmation that there will be an
00:57:39 confirmation that there will be an opportunity to make submissions on these matters
00:57:43 matters the nps submits that it is essential that the inquiry obtains and hears witness evidence in public from the sds's two intelligence customers a8 uniform branch and the security service and the operational squad most directly concerned with its work mpsb c-squad
00:57:59 concerned with its work mpsb c-squad it also repeats its request that the inquiry call expert evidence which places the sds's work in its proper historical political and professional policing context and its request for the inquiry to
00:58:10 and its request for the inquiry to properly investigate the origins of the use of deceased children's identities so if you are not minded to accept the spss the nps's submission on these issues then may i formally request that
00:58:22 issues then may i formally request that you provide a written ruling setting out your reasons for rejecting them finally the nps would also be grateful for clarification by the inquiry of the test or standards that it intends to
00:58:35 test or standards that it intends to apply when assessing the justification value
00:58:38 value of the sds's work in the period 1968-1982
00:58:40 1968-1982 this includes the applicable legal principles and standards governing the activities of the sds mpsb the security service and the government as i have said the mps welcomes
00:58:55 as i have said the mps welcomes consideration of these issues which it has itself been considering and which have now been brought to the fore by the opening statements of the category h core participants and others no doubt in the normal way counsel to the inquiry
00:59:11 the normal way counsel to the inquiry will ask questions which bear upon these issues during the forthcoming hearing including whether the sds managers considered the lawfulness of their work at the time and whether advice was sought on that question
00:59:26 sought on that question of course such questions will also need to be explored with module 2b and 2c witnesses before conclusions can be fairly drawn however it needs stating that because public inquiries are inquisitorial
00:59:38 public inquiries are inquisitorial not adversarial it's not for one set of participants to set out submissions on the law
00:59:39 the law and allegations on the facts for other participants to be required to respond to those submissions and allegations and for the tribunal passively to
00:59:50 and for the tribunal passively to perceive them and to hand down judgment as would occur in a trial in a court this is also because as i've said the inquiry must not rule on and has no power to determine any person's civil or
01:00:01 power to determine any person's civil or criminal liability per section to one of the act
01:00:03 the act so to conclude the mps must take the lead sorry the inquiry must take the lead now and set out in writing the issues that it proposes
01:00:20 in writing the issues that it proposes to address in its engineering report and the legal framework and standards that it intends to apply in reaching its determinations the mps respectfully suggests that a timetable should also be set for written submissions and relevant evidence from the court participants in response to
01:00:31 the court participants in response to the inquiry's proposals together with an oral hearing if necessary in this way the core participants including the mps will be best placed to assist the inquiry in its consideration of these important matters
01:00:43 of these important matters so in closing i would like to reaffirm the assurance the mps has given in this statement that it will not seek to defend the indefensible
01:00:59 defend the indefensible may i also repeat the assurance that the mps has given previously that it will continue to participate fully in the inquiry's work and to do so with openness transparency and a willingness to improve thank you
01:01:12 thank you very much mr skelton i'm encouraged by your last words uh i do not intend to uh issue a formal written ruling in response to your
01:01:23 written ruling in response to your submissions but i propose to answer them orally now
01:01:31 not in the precise order in which you've raised them but in order which seems to me to make sense first of all you submit that i need the advice of one or more historians to inform me about
01:01:46 to inform me about historical social and political events and the circumstances in which policing was undertaken in the period from 1968 until the case of the sds
01:01:57 the case of the sds its conclusion in 2008
01:02:07 i declined to do that for a number of reasons first
01:02:18 first the uh period under review is one during which i was throughout a sentient adult interested in political affairs i give
01:02:20 i give an example which is as it happens slightly before and slightly outside the period that i'm looking at so as to avoid um
01:02:27 avoid um trespassing onto matters that may ultimately be the matter of submissions i listened on the radio
01:02:39 i listened on the radio to live uh broadcasts of the evenma of paris in may 1968 i heard general de gaulle's brusque speech on his return from general masu in the
01:02:51 in the french army part of west germany and i saw
01:02:57 and i saw on the television the reaction of parisian people to his speech and the events which has occurred
01:03:12 events which has occurred i was also aware of the outcome of the general election that then followed these events in france uh i won't at this stage say what my reaction to all of that was lest i uh betray uh some
01:03:25 uh betray uh some tendency that i should not but
01:03:27 but you need have no concern that i am from my own personal experience and from reading to which i will come in a moment aware of the political and in general
01:03:45 aware of the political and in general social circumstances in which the events that i'm inquiring into occurred second reason is this i choose two dead historians as to avoid offending the living but if i had commissioned reports from eric hobspawn and robert blake
01:03:59 and robert blake about these events i would have got two very different reports because of their differing starting standpoints
01:04:20 you ask about my reading i have a a a library at home of over 300 volumes about modern history in the
01:04:34 in the classical sense post 1713 but almost all of them are post 1789 i do not have a catalogue of my library and i do not intend to sit down to produce one
01:04:46 produce one but inevitably i have informed myself over the years about historical events in particular reasonably modern historical events you um
01:05:00 you um i i suspect your question was prompted by my questions of tariq ali about trotskyism and andre nin who as
01:05:06 as i'm sure you know was
01:05:12 executed murdered
01:05:13 murdered by uh
01:05:14 by uh agents of the uh nkvd
01:05:22 nkvd uh in republican spain when stalin
01:05:26 stalin required him to be put out of the way now i know about that because i read hugh thomas's book on spanish civil war and more recently i read stephen copkins admirable
01:05:38 stephen copkins admirable biography as yet incomplete of stalin um i i'm not going to announce formally that i have read these things
01:05:49 things i deal with it by questioning somebody who knows a great deal more about trotskyism tariqahli than i ever could hope to
01:05:59 hope to so the answer to your second proposition that i should disclose the list of my reading is what i have read and is going to be taken into account in the course of the inquiry certainly will be um
01:06:12 will be um published as it has been by mr barr this morning um but i am not going to put into the public domain every bit of history that i have read that has informed
01:06:21 informed my um
01:06:22 my um understanding of what in the general political and social circumstances of the united kingdom england wales and europe
01:06:34 europe occurred
01:06:39 occurred third and perhaps rather more important is the um contemporaneous evidence about the receipt and the use to which it was put of sds intelligence
01:06:52 of sds intelligence now
01:06:55 now the best contemporaneous evidence for any historian or inquisitor such as me into what happened is contemporaneous documents my understanding is that the a8
01:07:08 my understanding is that the a8 contemporaneous documents the threat reports
01:07:09 reports about the major disturbances that occurred in tranche one
01:07:15 one uh cannot be found um i i can't find them if the metropolitan police don't know where they are and um if they've gone they've gone
01:07:26 and um if they've gone they've gone um as you rightly say there is nobody in the senior position in a8 now who is alive and able to provide a statement i
01:07:36 i very much doubt the utility of asking a junior
01:07:37 junior officer at the time involved in processing the reports and i'm
01:07:45 and i'm sanitizing them so that they end up in a threat assessment without being capable of being attributed i strongly doubt the utility of asking any such person we do in fact have one or two people who
01:07:58 in fact have one or two people who fulfill that role who can be asked to the extent that they can help gladly i will accept their assistance but i am not going to go chasing around umpteen junior officers whose identities i do not know
01:08:11 i do not know to try and find out if they might be able to help um
01:08:13 um as far as the security service goes i am not investigating the security service i am investigating a unit of the metropolitan polices as you know the security service have provided me
01:08:27 the security service have provided me with a mass of documents which i could never have hoped to get from the metropolitan police which have been provided invaluable information about
01:08:38 provided invaluable information about what occurred they've also provided a thoughtful entirely public witness statement from witness zed i would have no objection at all to the metropolitan police providing a
01:08:50 the metropolitan police providing a similar statement if as i anticipate they any more than i can
01:08:51 can not identify individuals who can provide it from their own knowledge
01:09:03 the next point is
01:09:06 is deals with the use of deceased children's identities um it is clear that at some stage the sds adopted this practice precisely when
01:09:17 sds adopted this practice precisely when i have not yet discovered by precisely i mean
01:09:23 mean to within a a month or two i i'm i now
01:09:26 i now believe that i it's possible to establish
01:09:33 establish approximately when it's occurred but not certainly within a month or two now um
01:09:39 a decision must have been made within the mps
01:09:47 the mps if not at sds managerial level and you rightly submit there's no evidence of that
01:09:48 that at a higher level it must have been documented at least i hope it must have been documented i don't know where the documents are if the mps can find them then
01:09:59 the mps can find them then they may i would gladly welcome assistance and it is conceivable um i hear i'm purely speculating that arthur cunningham was the source of the idea because he was uh
01:10:12 source of the idea because he was uh i now know from the helpful research that's been done by the dl uh the in in
01:10:23 that's been done by the dl uh the in in charge of the investigation into uh the kbg use of the identity of a dying man who
01:10:29 who subsequently um was prosecuted in this country um for i think making a false passport
01:10:42 for i think making a false passport application but it was um clearly rather more than that as the judge's remark as the judge judge's remarks made clear but um
01:10:43 but um unless such evidence can be found i very much doubt it is going to be possible to say within the mps who did it i don't in those circumstances see the utility of um
01:10:58 utility of um asking the security service who i
01:11:08 who i am reluctant to pry into their practices in circumstances where i have no reason to believe that they would have done let alone um sis
01:11:13 sis who uh
01:11:16 who uh may or may not have used the practice but uh
01:11:17 but uh uh
01:11:18 uh as their responsibilities for gathering intelligence abroad it couldn't possibly have any legitimate impact upon
01:11:31 impact upon a police force gathering intelligence in this country um so the answer to that is that i do not intend to investigate whether diseased children's identities were used by others
01:11:42 by others and i can't for one moment think that you would wish uh it to be thought that the kgb had been the originator of the practice uh adopted by a domestic police force uh or
01:11:57 i i think less said about that the better
01:11:58 better now there's a final issue which you haven't raised in your submissions and i'm not expecting an instantaneous response to but is a matter raised by ms
01:12:09 response to but is a matter raised by ms kilroy and is one that the inquiry would ultimately have looked into i hope in any event and that is um the lawfulness of some of the practices
01:12:22 practices uh adopted by the sds i'm not talking uh at the moment about um uh sexual relationships with activists or in in a false name uh i i'm not talking about um turning up at demonstrations and um
01:12:38 turning up at demonstrations and um participating in events that on one view amount to public disorder i'm not talking about trivial matters such as flight posting i'm talking about things that um
01:12:45 that um were actually undertaken um with the knowledge of managers and certainly without disapproval but which
01:12:59 but which raise questions as to lawfulness and may i give the two examples has occurred to me
01:13:04 me the first is gaining entry to someone's home
01:13:06 home by
01:13:08 by falsely
01:13:09 falsely pretending to be somebody else
01:13:20 my understanding is that it has always been accepted that a common law and here i'm concerned with common law not the convention the common law that was regarded as a trespass certainly for the purposes of the um larseny act
01:13:33 larseny act uh gaining entry to a home within between nine and six ie at night by fraud was regarded as constructive
01:13:45 by fraud was regarded as constructive breaking you know you had to break and enter to commit burglary in under the last knee
01:13:47 last knee um
01:13:56 i have seen nowhere any um suggestion that the lawfulness of that particular technique was considered at any level within the mps
01:14:08 the second uh slightly more arcane is the
01:14:10 is the distribution of confidential information such as banking uh details
01:14:22 without a warrant um
01:14:24 um it's uh
01:14:26 it's uh if it is a a breach of the law it's pending a breach of the civil law just as trespass would be a breach of the civil law
01:14:44 the civil law but um on the whole my understanding is that the police forces of this country have always sought to operate within the civil law hence the need for warrants
01:14:47 warrants to um
01:14:54 to um perform acts that would amount to a breach of the civil law and i i
01:14:56 and i i would welcome uh submissions on that plainly all right i'm not here to make findings uh about whether or not a lawful activity occurred um but i
01:15:10 um but i do want to know whether the lawfulness of activities were considered and if so what if any conclusion was reached about it
01:15:25 and if not um whether in fact
01:15:28 in fact these activities could properly be considered to be lawful
01:15:41 forgive me for that rather long response um and of course you may um if you wish to respond now but you may prefer to hold your peace and i won't tell you to guest you if you do so you've offered me a lifeline which i'm going to take right
01:15:51 right and thank you very much for your patience um we will now break for a quarter of an hour before mr sanders makes his submissions thank you very much indeed
01:30:20 mr thomas good afternoon sir thank you um
01:30:21 um this is
01:30:22 this is the opening statement for the uh t1 p3 hearings on behalf of the designated lawyer officers um who as you know comprise 115 former members of mostly
01:30:40 former members of mostly special demonstration squad sds and also the national public order intelligence unit npoiu so my clients the members of that core participant group include the vast majority of the police witnesses
01:30:52 police witnesses that you've heard from so far and that you'll be hearing from this week and next week so it was my intention to be
01:31:04 intention to be quite brief in this oral statement um
01:31:07 um i may have to be even briefer now because i
01:31:11 because i feel somewhat like a footballer stepping out to take a penalty only to find not only have the goalposts be moved they've been
01:31:16 been taken down and the ball's been taken away as well obviously i'm quite closely aligned with mr skelton in terms of the issues i was going to
01:31:25 going to press
01:31:28 press i don't want to take up your time unnecessarily is on this by the same token it's quite difficult for me to extricate parts that um may no longer be live
01:31:38 live at least for yourself of course and i have no objection at all you're making um submissions that have not already been made by mr skelton which you share i understand that you
01:31:49 which you share i understand that you share them if you want to say anything additional then please do um my mind is obviously not closed until after i've heard everybody however firmly i may have expressed my opinion
01:32:00 may have expressed my opinion yes i can um i'm not sure mr skill will feel very good about it if you suddenly change your mind after hearing me say exactly the same things but um uh i'll press on nevertheless um
01:32:14 uh i'll press on nevertheless um so in our written opening we'd uh touched on three um more substantial evidential issues and then three more miscellaneous matters i'm going to follow that
01:32:27 follow that um that outline and then touch briefly on
01:32:28 on uh the issue that you've raised in relation to ms kilroy's submissions on lawfulness and legal framework and so on um
01:32:39 um the first evidential issue sir is just in relation to um uh modules two b and c so that's the evidence from uh
01:32:51 uh senior personnel above the sds and also other personnel working with and around the sds in our submission it's important that this
01:32:59 this evidence is heard before you um sit down to finalize any interim report on the on the t1 period
01:33:12 interim report on the on the t1 period uh nothing you've said or what mr barr said suggests you're you're minded to do otherwise but that's very clearly our position um
01:33:22 um the importance of of evidence um from and about the a8 uniform public order branch um the c
01:33:30 the c c squad and the other um special ground squads and also mi5 is in relation we submit to the justification for the sds reporting
01:33:38 reporting and in order to
01:33:47 assess make findings about the justification issues we say you need to hear evidence about the setting of specific intelligent requests so particular requests that were sent to special branch and then
01:34:02 were sent to special branch and then asked onto the sds to answer and also the setting of general intelligence requirements to cover particular areas or particular groups or particular particular individuals um
01:34:10 um also
01:34:13 also important evidentially is the use to which
01:34:16 which internal intelligence obtained by the sds was put that intelligence obviously went into individual intelligence reports it went into other oral and written communications
01:34:27 communications and it went into ultimately the general resource of the special branch registry so anyone
01:34:38 special branch registry so anyone referring to registry files would be referring
01:34:39 referring or could be referring to amongst other things intelligence obtained by the sds and then the intelligence was also fed into threat assessments um
01:34:51 um that were passed to a8 by the special branch squads um i've heard obviously what you've said to mr skelton about the the difficulty of obtaining evidence
01:35:04 of obtaining evidence in relation to those matters and pleased to hear that there are some names that you have that you may be able to to follow up um
01:35:09 um i think talking talking generally to my clients there should be evidence out there about threat assessments
01:35:20 assessments um how they were they were formulated um what purpose they served we've got some quite tangential evidence from christopher skay who obviously went on to work as
01:35:38 skay who obviously went on to work as the special branch liaison officer in a8 and in our submission there must be there should be other people still available to give evidence about about that
01:35:47 that and about liaison between first
01:35:48 first um
01:35:49 um the sds and the mps squads and then secondly the liaison between the mps squads and both a8 and mi5 you of course have already obtained
01:36:02 you of course have already obtained quite a lot of evidence about direct liaison between um sds and mi5 on a separate dotted line as it were um one important thing to
01:36:17 as it were um one important thing to bear bear in mind in this regard is that of course consumers of sds intelligence were not always conscious at the fact that they were consumers of sds intelligence um either because it went
01:36:28 intelligence um either because it went to them in a sanitized format or because they were simply referring to materials uh making inquiries of the special branch registry um so there are of course difficulties in that regard but we submit that it is important to try as far as possible to obtain evidence
01:36:41 as far as possible to obtain evidence from witnesses able to to speak directly to those matters because otherwise what you're left with is
01:36:46 is a focus on the sds as
01:36:50 as either the antenna or the the pipe collecting this information and passing it up the chain
01:37:01 it up the chain um but no evidence about what happened to it which must be crucial to any assessment of its value and utility um
01:37:11 um so far is concerned concerns mi5 um
01:37:14 um we say there are limitations to the statement of witness said in that it's secondhand evidence it's crafted to be open only evidence and so therefore doesn't deliberately
01:37:28 therefore doesn't deliberately refrain from touching on closed matters it's very much focusing on the relationship the direct relationship between
01:37:35 between mi5 and the sds and has very little about the relationship between mi5 and special branch and special branch squads
01:37:48 squads and nothing about the the correspondence passing between mi5 and the squads and last mission that's that's quite important contextual information one has seen
01:37:56 seen um a reasonable proportion of the uh intelligence reports attributed to the to the sds um beginning with
01:38:08 to the sds um beginning with a cross-reference to a box 500 inquiry and effectively that report is then answering that inquiry um we have seen very little i can think of only a couple of examples possibly in relation to closed offices where we've seen
01:38:23 closed offices where we've seen the the correspond the letter from box 500 to the squad and then the um that's then generated the intelligence report containing the answers all of that and our submission is not in the statement of witness said and it would
01:38:36 statement of witness said and it would be helpful to get some more evidence if possible um about it there's also nothing in with this said statement about vetting uh and of course um witness said he or she
01:38:49 he or she um is not giving any closed evidence not giving any any oral evidence um so for those reasons and for the reasons elaborated on by mr skill we do say
01:39:00 say that more evidence uh is important in terms of modules two b and c um collecting it before any t1 closing statements and entering report is important
01:39:15 important and in our submission that should be done um or should include live evidence um dealing with those matters
01:39:32 so my next topic was um under the heading other available evidence where we of course closely aligned with um mr skelton in relation to the need for an expert historian or historians to give evidence about
01:39:47 or historians to give evidence about political and socio-economic context we've also made the point that it would assist you sir to have some evidence from clinical psychologists or behavioral scientists as to
01:39:57 as to these
01:40:01 these the way in which human beings respond to to long-term undercover deployments and to living second fictitious lives um evidence explaining what one can expect
01:40:16 evidence explaining what one can expect from human beings in those circumstances what what
01:40:20 attributes would make someone suitable for that work or unsuitable for that work and the stresses it involves the risks that it may carry and the best way to manage those risks
01:40:35 way to manage those risks that's a further area where we say you should obtain evidence
01:40:40 evidence and we are aligned with mr skelton in relation to your background reading
01:40:52 relation to your background reading i heard obviously your your response in relation to expert historical evidence and in relation to your to your background reading um
01:40:59 um the difficulty with the approach that you're you're taking um
01:41:02 um is that in in some senses you're almost treating yourself as a witness to say well i i was a sentient adult for the
01:41:14 well i i was a sentient adult for the time i witnessed these events unfolding on television and radio and read about them a great deal the difficulty with that
01:41:17 that in my submission is that none of the core participants can propose questions to be put to you about that
01:41:30 to be put to you about that and counsel to the inquiry won't be able to put those questions to you so one
01:41:31 so one you also alluded to having opinions about matters that you you perhaps wouldn't want to share at this stage or it wouldn't be appropriate to share it's important in my submission to um
01:41:46 it's important in my submission to um of course you have your own knowledge and your own experience and that's perfectly understandable but to have um someone independent of yourself and of all the core participants
01:41:57 participants um speak to these matters and give evidence because obviously you can't give evidence you can't be a witness and to allow for that evidence to be
01:42:10 and to allow for that evidence to be questioned is an important part of the of the process um
01:42:13 um so
01:42:18 so we would urge you to to reconsider that um
01:42:19 um i i take the point about you not wanting to catalogue your library
01:42:28 library um but some indication of what you see as the key texts that you've read from my perspective events in in france and spain and so on seem um
01:42:38 seem um fairly peripheral but there must be books in your library which really speak directly to the matters of relevance to this enquiry
01:42:49 matters of relevance to this enquiry and that it would be helpful to know that you've read them it may be we don't know that one of the core participants may be able to suggest well here's a if you've read that book you must
01:42:57 you must read this one or um you must bear this point in mind when it comes to chapter three or something like that and so all of this is just about
01:43:10 and so all of this is just about uh transparency and allowing all of the core participants to uh participate in the process um address you and and put questions to to witnesses who can give evidence
01:43:25 i also you don't intend to give a written ruling about this but i would urge you to um
01:43:32 to um to provide some guidance in writing for the um for the poor participants as as to your approach and your reasons so that um they can be considered and understood
01:43:45 understood um
01:43:46 um so the third evidential matter that i just wanted to address you on briefly is in relation to the use of deceased
01:43:58 in relation to the use of deceased children's identities and i've heard what you've said about that um
01:43:59 um today and of course mr barr addressed you on it um this morning
01:44:10 addressed you on it um this morning possibly it was just before lunch but um i understand your your position the
01:44:12 the the reason we say you should and you must go wider than the sds uh and its use of
01:44:26 uh and its use of information about deceased children and deceased young adults in constructing or in forming the basis for undercover um
01:44:34 um is that
01:44:36 is that it's vitally important to meeting the issues outlined in the issues list one narrative about this matter and particularly you'll see this in the
01:44:48 particularly you'll see this in the category f called participants missions um is that the sds use of the practice of the tactic
01:44:53 tactic um was potentially plucked from popular culture was in was an instance of of isolated
01:45:07 aberrant thinking
01:45:15 thinking that's characteristic of a unit that's gone that's gone off the rails and that no one else um did such a thing or would have done such a thing because it was so obviously unconscionable and disgusting
01:45:27 unconscionable and disgusting and also that other alternatives were available
01:45:29 available um it's clear in our submission that the the idea didn't come from the day of the jackal
01:45:36 jackal um and as you've seen from our our written statement we we in fact spoke to frederick forsyth who explained that he
01:45:47 who explained that he um heard about it from a mercenary he'd met while covering the biafran war it's
01:45:52 it's it was
01:45:57 the way in which at that time pre-computerization um a false british identity um was constructed um
01:46:11 um mr bars recognized that it was used by others you've referred to the the malvina um prosecution which was obviously brought to our attention by jeffrey kraft who was involved in in the case
01:46:19 case um and that that culminated in an editorial in the times highlighting the fact that there was a loophole uh in the system
01:46:30 uh in the system uh in that birth certificates of disease people could be obtained and then used to obtain passports other documents and so on
01:46:35 so on um and likewise the portland's firing
01:46:44 which is referred to in the the dead doubles book and in the christopher andrew book um one point we've highlighted in our written submissions
01:46:57 highlighted in our written submissions is that where that's that's mentioned in christopher andrews book he refers to mi5 putting in place a system that would be triggered by the kgb making applications to the records offices that might be
01:47:09 that might be used to found a quote unquote dead double identity um in the last mission the fact that
01:47:20 um in the last mission the fact that there there appears to have been some kind of system along those lines um and the fact that it appears to us inevitable that other agencies who wish to
01:47:29 to backstop um covert legends or identities would have used the practice but those those are all matters which you should investigate because you're faced with um what was the
01:47:42 um what was the where did this come from what was the justification for doing it if the sds managers were doing something that was just completely off the wall
01:47:54 off the wall um obviously egregious in the words of the home office home affairs select committee ghoulish um that
01:48:01 um that no
01:48:02 no that no one in their position could possibly or should reasonably have done then that would be an important finding for you to make equally if they were doing something
01:48:16 were doing something that was being done by those around them those they were working with possibly even those they were working against
01:48:23 against um and that that was the way a false identity was established pre-computerization then that's an important matter for you to make findings about otherwise you'll simply be saying
01:48:36 you'll simply be saying yes the sds did it other people did it we don't know in particular who who introduced it or formalized its introduction um and it also goes to the to the question raised by the category of core participants about whether there were
01:48:49 participants about whether there were available alternatives was there another way of doing this um which didn't uh trespass into the use of um information about people
01:49:03 the use of um information about people who have died um so for those reasons we say this is a matter you should go into now i take your point while you're not here to investigate mi5 um we're not inviting you or suggesting you should look into mi5's
01:49:20 should look into mi5's use of the tactic or mi6's use of the tactic but just simply whether or not it was a tactic that they used what were the systems that they had in place
01:49:27 place uh with the um with the registry um to alert them to the fact that the kgb might be making um a double um application um
01:49:40 um application um did they
01:49:41 did they or would they have liaised with um special branch or the sds about the existence of those those systems so that they weren't triggered by
01:49:53 triggered by um undercover of sds undercover officers um
01:49:53 um collating their their legends and so again that's another reason why we say further inquiry into this which could be done simply by asking the agencies
01:50:07 asking the agencies um could even be dealt with enclosed it would inform you in terms of whether making a finding as to whether or not this was a an aberration and a an unforgivable inexplicable aberration by a group of
01:50:19 inexplicable aberration by a group of officers who'd just become cut off from from uh reality or whether it was it was something that was
01:50:30 something that was the way things were done at that time um
01:50:33 um so i think that's all i'll say about that third evidential issue um and then three uh miscellaneous matters which i can deal with much more briefly
01:50:49 the first was just to complete a point that we'd first raised in our t1 p2
01:50:51 p2 um
01:50:52 um opening statement and i think it was a point that we came to
01:51:02 to um having listened in particular to the evidence of lord hane and the points that were being made that the sds was a was a monstrous waste of money and that the resources would would have been better
01:51:16 resources would would have been better spent elsewhere and would have reduced crime in the capital if they had been spelled out spent elsewhere um and it's simply just to collate the statistics for that which are that 98 more than 98
01:51:28 98 more than 98 of metropolitan police officers were deployed outside special branch so special branch itself is less than two percent of the um
01:51:38 um a tested strength of the of the mps um
01:51:39 um just focusing on special branch itself more than 95 percent of special branch officers were deployed outside the sds so the sds was less than five percent
01:51:51 was less than five percent uh at any one time of the attested strength of special branch and then um standing back from that more than 99.9 percent of metropolitan police
01:52:05 99.9 percent of metropolitan police officers were deployed away from the sds um
01:52:06 um and so the relevance that visa is that um the focus that you have on the sds can
01:52:21 the focus that you have on the sds can be distorting um because you you you're just looking at the at the unit and it's easy to to um
01:52:31 to be distracted by that and to um fail to step back and see the wider picture um in our submission when one looks at the whole apparatus of the metropolitan police
01:52:39 police um
01:52:44 um the sds was a very very small commitment um
01:52:54 a series of antenna around the capital um taking in information that could be of use in relation particularly to public order policing also assistance to mi5 in relation to subversion uh and it's it's
01:53:03 it's if one were to look at it from a cost benefit
01:53:05 benefit perspective um it's important to bear in mind how how cost effective and minimal the expenditure on it was particularly bearing in mind that the home office covered
01:53:16 covered its expenses and the second amount of services just very briefly
01:53:27 barr has already touched on this it's just
01:53:28 just the fact of the um the mi5 document that's now been disclosed in relation to information about children which shows that
01:53:43 police forces across the country were being asked to provide mi5 with information about quote unquote subversion in schools and again
01:53:51 and again as with the use of deceased children's identities the focus on what the sds was doing um in the abstract without the contextual um
01:54:02 um information about what others was doing can be
01:54:03 can be distorting the fact that mi5 was asking for this information um is strongly supportive of the of the fact that sds officers
01:54:15 the of the fact that sds officers thought it was appropriate to report it um
01:54:20 um thirdly and finally under this heading sir it's just in relation to hn354
01:54:26 hn354 uh and it's just a point that we think is important in terms of setting the record straight the second statement of of madeleine um
01:54:40 alleges that uh hm-354 okay false evidence in his main witness statement um
01:54:42 um of course that's wrong uh as you know because you've seen the the unredacted version um he did not conceal or obscure the fact that he sent uh
01:54:52 uh postcards to former targets after his deployment uh and just in his interest in having been accused of having lied on oath we think it's important to set the
01:55:03 we think it's important to set the record straight about that there's no criticism of madeleine of course she hasn't seen the unredacted version of the statement um there it is
01:55:16 the statement um there it is um before turning to ms kilroy's points it was just the final uh point we said in our conclusions uh um was just a an urging or an encouragement that there'd be
01:55:21 be um more hearings in front of you um at least periodically now that we're we're hopefully coming uh out of the the
01:55:35 hopefully coming uh out of the the pandemic and the restrictions that we've been operating under your next scheduled uh evidential hearings are in two years time
01:55:41 time um
01:55:41 um and
01:55:42 and just as from experience of how the inquiry unfolds and issues come up in our submission it would assist to have periodically um
01:56:01 to have periodically um more hearings in front of you to discuss um issues or further core participants to make applications or to request rulings
01:56:02 rulings [Music]
01:56:05 [Music] rather than the next opportunity we all get to to air
01:56:10 air our our concerns and our grievances is in two years time i know that there are of course meetings between the between the enquiry legal team and the various core participant groups
01:56:21 core participant groups um and there's the opportunity for correspondence but just being able to every now and then have a dialogue with you sir in arts mission we think would be very helpful
01:56:32 be very helpful and
01:56:37 and just to take an example the question um that
01:56:38 that we raised about um whether or not you would be um
01:56:49 um whether or not you would be um uh that we have raised about whether or not you'd be getting expert evidence from a psychologist a behavioral scientist the question we raised about expert evidence from a historian um
01:56:57 um they've been raised once every 18 months we just we haven't had a response um and it's very difficult in that situation to know
01:57:10 situation to know why that is um so if we if we put a question to you nothing comes back um or if it's just well i i'm not going to do that we don't know is that because you think it was a
01:57:21 is that because you think it was a ridiculous pertinent suggestion and you're not going to dignify it with a response is it because you think well
01:57:32 response is it because you think well there may be something in that but i'm going to park it for a while and deal with this and come back to it and
01:57:33 and that type of thing in our mission if we had more hearings in front of you every now and then um
01:57:41 um we could um get to the bottom of things and make a bit more progress um so this is just a general uh
01:57:53 uh suggestion a general bit of feedback finally so just to come on to um ms kilway's
01:57:57 kilway's analysis on behalf of the category h core participants um
01:57:59 um [Music]
01:58:00 [Music] what i'm going to say now is all is all very provisional i've only had it since um
01:58:05 um i think tuesday afternoon last week and i was only able to read all the openings at the weekend um so i just give you two sets of provisional
01:58:17 provisional thoughts um the first set is in relation is procedural in nature
01:58:28 is procedural in nature and goes to what's the relevance of this and the second is more substantive just in terms of the legal analysis that's being put forward in relation to procedure before
01:58:38 before we or any of the other core participants addresses this
01:58:43 i would submit it would help to have some guidance about what the purpose of the exercise is and which which parts of the analysis are thought to be important and which parts
01:58:52 parts are not
01:58:53 are not um
01:58:56 um as things stand at the moment as a matter of public law um all decisions of public authorities must be presumed to be lawful and less until the court of competent jurisdiction declares otherwise
01:59:07 jurisdiction declares otherwise this is not a court of competent jurisdiction and so therefore as a matter of public law there's not going to be any any finding that it was unlawful to have uh
01:59:21 uh an undercover police unit or anything like that
01:59:22 like that um also
01:59:25 um also in terms of the terms of reference of the inquiry the legality or the lawfulness of what happened isn't a an issue within the terms of reference so what the terms of reference refer to
01:59:38 so what the terms of reference refer to is the inquiry identifying and assessing the adequacy of the justification authorization operational governance and oversight of undercover policing and the selection training management care of undercover police officers
01:59:54 care of undercover police officers in our submission the the adequacy of
01:59:58 of authorization is not and cannot be code for the legality or lawfulness of uh the use of under undercover police officers
02:00:05 officers and if that had been meant that the terms of reference would have said so expressly
02:00:10 expressly um so we
02:00:14 um so we put that there as our as our first thought first response in relation to the analysis as to what is the relevance of this where would it go in terms of your
02:00:27 where would it go in terms of your report does it fall within the terms of reference
02:00:28 reference um
02:00:34 um secondly in relation to the the substantive or the correctness of the analysis
02:00:42 analysis and we made brief submissions on the functions of police constables and police officers and the relevance of those functions to the work of the sds in our in our t1 p1 opening so that's october 2020
02:00:55 october 2020 um that's a part 3.1 and to the lawfulness of undercover policing at part 4.3 we referred to the report of the pope
02:01:08 we referred to the report of the pope inquiry in 1833 within a few years of
02:01:19 inquiry in 1833 within a few years of the establishment of the metropolitan police where whether the prime facey lawfulness of undercover policing um
02:01:20 um was affirmed of course that was a parliamentary inquiry um but that would clearly be understanding on which the metropolitan police
02:01:31 metropolitan police was working and would have been working thereafter um
02:01:35 um beyond that it it would take us some time
02:01:36 time to unpick
02:01:37 to unpick uh
02:01:40 uh and respond to what's said in the category h call participants opening so mr roy's submissions um
02:01:45 um but three
02:01:46 but three provisional points occur to us the first
02:01:54 the first uh this is of particular relevance when it comes to um the period we're concerned with at the moment 1968 to 1982 um is of course that the reliance upon
02:02:07 um is of course that the reliance upon the reference to the the wilson decision of the investigatory powers tribunal um
02:02:14 um is in opposite because that's the decision of a tribunal applying um
02:02:19 um the human rights act 1998 um and the jurisprudence of the of the strasbourg court in relation to article 8.
02:02:23 8. um so it's it's applying legal principles that didn't apply as a matter of domestic law uh in 1968 to 1982.
02:02:36 uh in 1968 to 1982. um it's also a decision as mr skelton has mentioned that's based on concessions um by the mpcc and by the metropolitan police
02:02:43 police uh and in our submission we'd go on to say that it's important to bear in mind that those are concessions made in the context of a particularly egregious set of facts um where
02:02:56 um where it's evident that the metropolitan police
02:02:57 police was
02:02:58 was trying to um
02:03:05 give just satisfaction to ms wilson in terms of what what it admitted so as to make it unnecessary for those masters to be determined by by the tribunal um
02:03:16 the tribunal um so that's the first in relation to the fact that
02:03:19 fact that wilson the decisions about the human rights act wasn't enforced at the relevant time that we're concerned with at the moment and then the second topic in in relation to this is just as to what the law was
02:03:30 to what the law was at that time 1968 to 1982. um
02:03:39 essentially the position was that the law was as set out in the malone decision that um
02:03:45 that um police forces police constables um as crown bodies and officers of the crown had power to do anything unless they were prohibited from doing it
02:03:59 were prohibited from doing it this was a period of course before the reform of order 53 and o'reilly and mackman and the development of judicial review it was before
02:04:10 it was before the enactment and entry into force of pace
02:04:11 pace the human rights act um the interception of communications act
02:04:16 act regulation of investigatory powers act investigatory powers act any of the data protection acts or the gdpr um and also it was at a time when the echr
02:04:27 echr jurisprudence was very different to the jurisprudence now so the the class
02:04:34 class and germany decision comes at the very end of the of the 70s um so last mission it's it's
02:04:46 um so last mission it's it's it's unreal and unrealistic to and
02:04:53 and ultimately futile to spend time asking yourself whether the special demonstration squad um would have passed muster under all this raft of legislation and this echr
02:05:04 raft of legislation and this echr jurisprudence that's come after it was conducting these operations um because that simply wasn't what those um
02:05:14 those um involved were faced with at the time the domestic law was different in a nasa mission they were clearly complying with domestic law [Music]
02:05:25 [Music] and then the third point to flag again provisionally here is
02:05:29 is in relation to the logic of this analysis and where it uh where it really goes so in relation to both
02:05:37 to both the article 8 human rights act um jurisprudence but also in relation to the points that have been made in relation to talk law or the civil law
02:05:51 talk law or the civil law the logic of this analysis would apply to every
02:05:52 to every undercover policing operation to all the sds operations that have been dealt with enclosed
02:06:02 enclosed and to all operations of mi5 mi6 and gchq
02:06:04 gchq um
02:06:04 um [Music]
02:06:08 [Music] when one particularly when one considers article eight there are of course two limbs to articulate the in accordance with the law limb and we know because all of the legislation i've referred to
02:06:22 legislation i've referred to say for the data protection legislation was passed to provide a legal basis um
02:06:23 um for the exercise of functions so that the in accordance with the law limb of article 8 2 is satisfied now in the
02:06:31 in the 60s 70s 80s um
02:06:39 um the legislation wasn't in force so we know it wouldn't have met the in accordance with the law um standard of article 8 but that doesn't matter because article 8 wasn't part of domestic law um the security service act wasn't passed until 1989 the intelligence
02:06:53 passed until 1989 the intelligence services act wasn't passed until 1994. um
02:06:56 um these were operations conducted just in a within a different legal context and retrospectively asking yourself um
02:07:03 um what
02:07:08 what what the ipt or what another court would make of it now is in our submission just pointless um
02:07:16 um things are very different now um
02:07:19 um the same goes in relation to the to the taught analysis because what what one then is faced with is say the questions that you
02:07:25 that you um raised about what might vitiate
02:07:30 vitiate consent
02:07:34 consent um so as to render entry onto premises um trespass
02:07:42 eventually you you can look at the law of what constitutes fraud um
02:07:45 um did
02:07:46 did the powers that the police had uh mean that this wasn't a fraud but essentially what you you end up doing is speculating as to what a court would
02:07:57 speculating as to what a court would have made at the time if faced with a taught claim um alleging that an undercover officer has committed a trespass by going into
02:08:08 has committed a trespass by going into onto into private premises um and again in my submission it just becomes um pointless and something that is not within your power or the terms of
02:08:19 within your power or the terms of reference to to determine and that would um
02:08:24 um if if it were the case that it was a trespass for undercover any an undercover officer to give a force identity and enter a premises that would apply to every single
02:08:31 single undercover peace operation every mi5 operation mi6 and so on um and so in our submission it's uh
02:08:42 in our submission it's uh it just becomes a meaningless hollow exercise to to say what um hypothetically or counterfactually courts applying the law now would have made of what was being done in the 60s
02:08:56 made of what was being done in the 60s and 70s um but as i say these are just provisional thoughts um in response to the analysis and um happy to come back to it it would
02:09:07 um happy to come back to it it would help to have some guidance from you sir or from from mr barr as to which parts of the analysis um
02:09:11 um uh
02:09:12 uh require
02:09:17 require our attention otherwise we're all just producing essays about um about the law
02:09:25 so those were my reasonably brief i hope uh submissions and as there's anything else i would just thank you for your time commendable brief thank you um because you've um raised uh an interesting and
02:09:37 an interesting and uh possibly difficult question i will deal with what you were talking about last briefly if i may um
02:09:48 um i accept subject what miss gilroy has to say um the proposition that something that was not part of our domestic law at the time
02:09:57 time as the european convention on human rights was not cannot
02:10:03 cannot determine whether something was then lawful
02:10:05 lawful as
02:10:06 as from
02:10:11 from the 1st of january 2000 it can of course but it wouldn't apply retrospectively that's when the human rights act came into force second of october second of october is a wrong day thank you
02:10:29 i do think it is part of my terms of reference look into the justification for undercover policing uh i find it at the moment difficult to conceive that something that was not
02:10:40 that something that was not lawful under the common law
02:10:56 could be justified as a police operation hence my worries about the two specific aspects that which i drew everybody's attention um
02:11:06 i think your analogies with gchq the security service and the special intelligence service are inapt for a number of reasons first gchq didn't trespass anywhere but it did do things that uh the
02:11:16 the european court of human rights uh has held required to be authorized by law and of course at that time nobody um there was no law which authorized it all that i accept but um
02:11:34 likewise the um activities of the security service in obtaining home office warrants to interfere with telephones or the police to put um listening devices on the outside of
02:11:47 listening devices on the outside of people's homes all of which have been subject to litigation in the european court of human rights um none of that is within
02:11:59 none of that is within do i need specifically to address because i am concerned with the lawfulness under the law as they existed at the time in domestic law
02:12:10 time in domestic law subject of course to what mrs kilroy may say otherwise if she persuades me that that view is too narrow then i will listen with care to what she has to say
02:12:17 to say um
02:12:20 but i do think that lawfulness under domestic law has got to be addressed and it
02:12:27 and it it's only
02:12:30 it's only as i see it at the moment the two respects that i've identified where routine sds activity might be might have been considered unlawful
02:12:44 been considered unlawful so i hope that partly puts your mind at rest
02:12:48 rest partly focuses it and leaves you with a question that i think you do of course you need to answer now can i deal with the other points um
02:12:57 um i i would be perfectly happy to have um meetings attended by all core participants to discuss uh issues as the inquiry goes along you know the circumstances in which that which was my original proposal uh
02:13:17 came to an end um i hope that those times now passed and we can engage in fruitful discussions i'm not closing the door on that at all um
02:13:23 um secondly i am happy to have suggested to me reading matter that um i you you think i ought to look at i i i
02:13:36 ought to look at i i i i'm very interested in the research that you've undertaken into the use of deceased children's identities before the sds used it i i read that in your opening statement with great interest and if you come up
02:13:49 with great interest and if you come up with anything more like that please tell me
02:13:58 i don't intend at the moment to have a psychiatric or psychologist evidence because there is in fact a very clearly documented trail
02:14:10 documented trail of what happened when it was realized that these problems existed and i i've read a great deal in the internal sds management reports
02:14:22 in the internal sds management reports and in what psychologists psychiatrists said about it and i i
02:14:25 and i i doubt that i need to know more about it than what i'm told by those reports and by what the psychiatrist's psychologist said at the time
02:14:38 said at the time in the 90s and early naughties but uh
02:14:48 i i i have got to have regard to the need to report within a reasonable time and at reasonable cost and um uh engaging in all these interesting
02:15:01 engaging in all these interesting by ways he's going to delay things and cost something and i'm at the moment i don't see the need for it but
02:15:09 it's helpful to a good illustration of the benefits of being able to speak face-to-face sir i mean in relation to the first point and um
02:15:14 and um the question of of lawfulness or legality my submission there's a there's an analytical issue here which is
02:15:26 which is one takes the point standing back you would say well you can't justify something if it involved illegality um
02:15:33 um but that's that really just sort of imports um
02:15:38 um the question of legality into the terms of reference in a way in which they're not there and when one talks about the justification for
02:15:48 for um the undercover reporting the justification in my submission must mean that the justification in practice was there a need for public order
02:15:59 there a need for public order intelligence was there a need or perceived need for intelligence about subversives [Music]
02:16:04 [Music] the
02:16:07 the justification for using the the undercover um method as the means to the ends is wrapped up in that but to then say well you
02:16:17 you you must remember that you can't justify something that that could or would have been uh given rise to a liability immediately my submission runs into problems with section two
02:16:29 problems with section two runs into problems with the scope of the terms of reference and runs into the problems with of
02:16:32 of drawing you into making findings that you have no um power to make um you're not competent to make i don't mean that in the sense of i will understand the potential which you're
02:16:44 understand the potential which you're using is i i don't take it as an insult
02:16:50 and and and therefore it's it's pointless because the the operation of the sds as a matter of
02:17:04 the operation of the sds as a matter of law it was lawful no court of competent jurisdiction has said otherwise um and as i say going into these questions about what would what would a court have made uh of a talk claim or a breach of confidence claim inevitably that court would have been presented with different submissions about the relevance of the policing
02:17:20 about the relevance of the policing context and the justification for it and so on so it just becomes in my submission um once i see the logic of saying you couldn't be justified if it involved illegality but then that just opens a door into something that in my
02:17:31 door into something that in my submission you into a territory you should you can't shouldn't go into in relation to the second point sir um we do think it would assist to um
02:17:46 we do think it would assist to um speak to a psychologist or a behavioral scientist um we we did take some steps to try and find one who might be able to produce a helpful report it's very difficult to find one
02:17:52 find one and because those psychologists behavioral scientists working in this field um
02:17:59 um are
02:18:03 are engaged by police services and the security service and so there hey there's a difficulty with their independence and b they
02:18:09 they appear to be very kind of reluctant to disclose information or to talk about things publicly that might be seen as
02:18:25 trespassing into sensitive matters and so we spoke to someone who who was very helpful who was recommended by uh one of our clients um but she she just said she felt this it wasn't something she could she could assist with um
02:18:36 um but some of the things she said went further than what's in the papers from the from the 90s and the naughties and
02:18:49 and i appreciate that they they mirrored and they chimed with a lot of that but a report
02:18:53 a report again by someone who can then answer questions from all of the core participants and from your team would be of much greater value it wouldn't in my submission cost a huge amount of money lead to any delay because it could be done in parallel
02:19:08 because it could be done in parallel with other matters or require more than half a day of of hearing
02:19:22 it would assist greatly there there seem to be issues to do with personality types um maintaining of boundaries uh suitability and so on and the effects of this type of deployment on people and some expert evidence on that in our
02:19:33 and some expert evidence on that in our submission would assist you would assist you in making sound findings the other difficulty with saying well i'm i've got this
02:19:38 this material from the 90s with the introduction of psychometric testing and so on so i think i've got enough there is that
02:19:46 is that we we would say that before you produce a t1 interim report it would assist you to have this information because you're going to be making findings about
02:19:59 making findings about um the conduct of officers in the 70s um
02:20:03 um without having or before hearing or considering evidence about the stresses and strains they may have been under the things that certain personality types are inevitably going to do in certain types of situation
02:20:16 to do in certain types of situation and so on uh and in terms of a fair set of findings about their conduct um you know this includes people who are who are no longer with us um rick clark and so on um
02:20:30 um in fairness to an understanding of what they did um and how um how it falls to be judged i'm not saying it's acceptable um but it needs to be understood in context it would assist you we say
02:20:41 you we say to hear some some expert evidence you can ask questions we can ask questions and
02:20:46 and and then i would find it impossible would i not to resist applications by those who have been affected by undercover policing to pay for them to have psychiatric or
02:21:02 to pay for them to have psychiatric or psychological evidence an expert kind to support
02:21:06 support i'm afraid that i have got to do this within a reasonable time and within reasonable cost limits and
02:21:17 investigating something that the outcome of which has actually been demonstrated by facts is not a
02:21:19 is not a a particularly good idea
02:21:30 i i we can all read what happened to undercover officers in in the lifetime of the sds and um
02:21:34 and um no one is going to suggest it did not have
02:21:36 have an adverse impact upon some of them just as no one is going to suggest that their conduct not necessarily the same
02:21:51 their conduct not necessarily the same individuals but the conduct undercover officers had an adverse impact on the lives of
02:21:54 lives of those with whom they interacted undercover um
02:22:00 um i i think there is a limit as to what i i can be reasonably required to investigate and i think that crosses it well sir i mean that i've i've said what what i can from from our side about that i i wouldn't say that
02:22:16 side about that i i wouldn't say that the fact that hearing evidence about the impact on and the
02:22:25 psychology of being an undercover officer means that you would then have to hear evidence about the impact on those who are affected by them is a reason for not hearing that evidence and i certainly wouldn't say that there's any reason why you shouldn't hear evidence about about the impact on particularly that deceived women
02:22:39 there it is
02:22:51 i do not wholly rule it out of course
02:22:52 of course i i
02:22:58 i i have to look at these issues as when they arise in practice and i
02:22:59 and i do not wholly rule it out but i am at the moment unenthusiastic about it can we can we leave it there that that went without saying [Laughter]
02:23:15 but my request for a reading list is genuinely meant i i and i also for any any information that you can put in that you think may help i i
02:23:26 i the non-states do this uh regularly and i would encourage them to do it i the encouragement goes both ways um please do so we will do our best sir thank you thank you
02:23:38 you i think that concludes business for today um if it does we've um we're drawing stumps some 10 minutes early thank you
02:24:09 you