Met Police Agent Provocateurs

[Jan Klimkowski]

So, even judges of the Court of Appeal have to accept Kennedy/Stone was "arguably" an agent provocateur.

Undercover police officer unlawfully spied on climate activists, judges rule

Mark Kennedy was arguably an agent provocateur, says appeal verdict quashing Ratcliffe-on-Soar conspiracy convictions

Rob Evans and Paul Lewis guardian.co.uk, Wednesday 20 July 2011 17.32 BST

Three senior judges have ruled that the undercover police officer Mark Kennedy unlawfully spied on protesters and arguably acted as an "agent provocateur".

In a damning ruling explaining why they quashed the convictions of 20 climate change activists, the court of appeal judges said they shared the "great deal of justifiable public disquiet" about the case.

The judges, who included the lord chief justice, said there had been a "miscarriage" of justice as a result of prosecutors failing to disclose to the defendants vital evidence gathered by the undercover officer.

The activists discovered their convictions for conspiracy to break into Ratcliffe-on-Soar power station had been quashed on Tuesday.

On Wednesday, giving their reasons for overturning the convictions, the judges made stinging criticisms about Kennedy's undercover operation, which they revealed was part of a long-term police infiltration of "extreme leftwing groups in the UK".

The judges said Kennedy "was involved in activities which went much further than the authorisation he was given, and appeared to show him as an enthusiastic supporter of the proposed occupation of the power station and, arguably, an agent provocateur".

The suggestion that an undercover police officer may have incited criminal actions is likely to be damaging to Sir Hugh Orde, who has been tipped as a replacement for the outgoing Met commissioner, Sir Paul Stephenson.

Orde runs the Association of Chief Police Officers, which until recently managed the network of undercover operatives sent to spy on political groups.

Wednesday's ruling heaps further criticism on the police and prosecutors, who have been subjected to seven official inquiries into their conduct of the case.

The campaigners who were charged with plotting to occupy the power station have walked free.

Lord Judge, sitting with Mr Justice Treacy and Mr Justice Calvert-Smith, declared: "Something went seriously wrong with the trial. The prosecution's duties in relation to disclosure were not fulfilled. The result was that the appellants were convicted following a trial in which elementary principles which underpin the fairness of our trial procedures were ignored.

"The jury were ignorant of evidence helpful to the defence, which was in the possession of the prosecution but which was never revealed. As a result justice miscarried."

Turning to Kennedy, they said the undercover officer who infiltrated the environmental movement for seven years had "apparently convincingly purported to be a supporter of the beliefs of those who later became involved in the plot" to break into the power station.

Under laws regulating surveillance operations, police officers are only allowed to take part in activities their superiors have approved beforehand.

Kennedy, who operated under the codename UCO 133, was authorised only to drive and drop off "the activists prior to them committing offences. UCO 133 will withdraw from the vicinity of the power station to avoid arrest and avoid becoming a witness to offences." That authorisation was given on April 9 2009, four days before the planned power station break-in.

However, the judges said Kennedy had personally taken part in reconnaissance trips of the power station as far back as January 2009. "When the protesters started to congregate just before the proposed occupation, it appears that Kennedy went much further than his authorisation."

The judges said he was one of two people who checked if there were police guarding the police station, and cited an instance when he agreed to use his expertise as a climber to get into the plant.

Prosecutors, in conceding that the activists were innocent, said it was "at least arguable … that he was regarded as something of an éminence grise by some of the younger activists upon whom they relied for advice and support".

The judges said: "In short, it appears that he played what can fairly be described, in the submission of Matthew Ryder QC on behalf of the appellants, 'a significant role in assisting, advising and supporting … the very activity for which these appellants were prosecuted'."

Kennedy was among 114 activists arrested hours before the proposed break-in was due to begin. In the months after the arrest, according to the judges, he "continued to be part of the group of campaigners and continued to provide information to his police handler about how the suspects who had been bailed were responding to the arrests".

He had covertly recorded a meeting of activists the day before the proposed break-in. The contents of these tapes, said the judges, would have undermined the prosecution's case, but were never disclosed to lawyers working for the campaigners.

The judges also revealed that Kennedy, who had begun to sympathise with the activists, wrote an official statement which provided "a measure of support" for the defendants, but which was also not disclosed.

After he was exposed last year, Kennedy offered to help the campaigners in their trial, but later withdrew his offer.

On Wednesday afternoon, Kennedy through his PR adviser, Max Clifford, said: "I refute the claim that I acted as an agent provocateur. At no time have I, or did I, actively encourage a group or person to engage in an activity that they were not already engaged in."

Vera Baird, a former Labour solicitor-general, criticised police chiefs. "It was an ill-thought-out campaign to undermine people who turned out to be honest campaigners, not criminals, during which they wasted an enormous amount of money on this man who inevitably went native living with decent people for all those years," she said. "They were then left with him having them down and with evidence showing that there was no crime in the first place."