Conclusions and recommendations
The legal framework governing undercover policing
1. Forces must have the flexibility to set the parameters of undercover operations in a way that is appropriate to each individual case, balancing risks and benefits as necessary. However, there are some lines that police officers must not cross. Ministers and senior officers have said that officers would not be authorised to engage in sexual relationships while undercover, but could not rule out the possibility of such relationships occurring anyway. We do not believe that officers should enter into intimate, physical sexual relationships while using their false identities undercover without clear, prior authorisation, which should only be given in the most exceptional circumstances. In particular, it is unacceptable that a child should be brought into the world as a result of such a relationship and this must never be allowed to happen again. We recommend that future guidance on undercover operations should make this clear beyond doubt.
2. We make no comments on the merits of the High Court case, but it demonstrates that there is an unsatisfactory degree of ambiguity surrounding these cases. In matters which concern the right of the state to intrude so extensively and intimately into the lives of citizens, we believe that the current legal framework is ambiguous to such an extent that it fails adequately to safeguard the fundamental rights of the individuals affected. We believe that there is a compelling case for a fundamental review of the legislative framework governing undercover policing, including the Regulation of Investigatory Powers Act 2000, in the light of the lessons learned from these cases. This will require great care and will take some time. We recommend that the Government commit to the publication of a Green Paper on the regulation of investigatory powers before the end of this Parliament, with a view to publishing draft legislation in the Session after the next general election.
3. Standards in undercover operations are jeopardised by lack of clear lines of responsibility between ACPO, the NPOIU and the different forces and units involved. Discrepancies in training, tactics and review between different undercover units further muddy the waters and risk ambiguity in what is acceptable conduct for officers working undercover. In the new landscape of policing, standards in undercover policing will transfer to the College of Policing. While it is right that the College should draw on the expertise of chief officers, its overall responsibility must be unequivocal and it must create a coherent set of operational instructions that will apply equally to all units conducting undercover operations, against which officers and forces can be held to account. We do not think it is acceptable for ACPO, a private company, to play any continuing role in this.
The use of dead infants' identities
4. The practice of "resurrecting" dead children as cover identities for undercover police officers was not only ghoulish and disrespectful, it could potentially have placed bereaved families in real danger of retaliation. The families who have been affected by this deserve an explanation and a full and unambiguous apology from the forces concerned. We would also welcome a clear statement from the Home Secretary that this practice will never be followed in future.
5. For the sake of families whose dead infants' identities may have been used as legends, it is imperative that Operation Herne is expedited with all possible haste. It is shocking that the practice of using deceased infants' names was apparently a surprise to senior officers and it is vital that the investigation establish quickly how high up the chain of command this practice was sanctioned. Once the identity of the senior responsible leaders has been established, the matter should be referred directly to the IPCC, which should then investigate the matter itself, rather than sign off on a "supervised" inquiry.
6. DAC Gallan told us that she first knew of the use of dead children's identities in September 2012, but the parents of that dead child have still not been informed. We cannot understand what is taking so long. Families need to hear the truth and they must receive an apology. Once families have been identified they should be notified immediately. We would expect the investigation to be concluded by the end of 2013 at the latest. Although we welcome the transfer of responsibility for the Operation to a leader from outside the Metropolitan Police, we are concerned that the appointment of a serving chief constable may not be conducive to a swift conclusion. We have written to Chief Constable Creedon for clarity about how much of his time he will be able to commit to this important work. Responsibility for this matter has already passed from the MPS to local forces, from DAC Gallan to chief constable Creedon and, we trust, from ACPO to the College. Without a clear line of accountability, the risks of malpractice are multiplied. We will return to the question of leadership of internal inquiries and undercover policing standards in our work on leadership and standards in the police.
7. We reiterate that in this kind of serious standards case the IPCC ought to run an independent investigation. This would be in keeping with the Home Secretary's statement to the House on 12 February 2013 that the IPCC would investigate all serious and sensitive allegations, in line with our recommendations. Funds for such an investigation should be provided by the professional standards department of the Metropolitan Police. In lieu of that independence, we will be asking to be updated on the progress of Operation Herne every three months. This must include the number and nature of files still to review, costs, staffing, disciplinary proceedings, arrests made, and each time a family is identified and informed. We will publish this information on our website.
8. It might not be possible to conduct a proper review of the current legislation until the current legal position has been clarified by the courts, which is why we have suggested a long timescale for new legislation to be prepared. However, it is important that the Home Office start preparatory work now in order to ensure that there is no further, unnecessary delay.
9. It cannot be sufficiently emphasised that using the identities of dead children was not only abhorrent, but reflects badly on the police. It must never occur again.