What does anonymity ruling mean for undercover police?

By Barry McCaffrey

THE PSNI’s future use of undercover officers against major criminals has been thrown into doubt after a court overruled a confidential police protocol guaranteeing anonymity to officers giving evidence in trials.

The criminal justice system is facing a major challenge following the collapse of an armed robbery trial after undercover police officers refused to give evidence unless they were granted anonymity.

For legal reasons we are unable to identify the case in question.

While the trial judge Mr Justice Tom Burgess had originally ordered that the officers had a right to shield their identity from the public gallery he also ruled that the PSNI had failed to prove that the officers would face any added threat by being visible to the accused while giving evidence, despite two of the defendants having been re-arrested for separate offences while on bail.

Prosecutors then failed in an attempt to allow the eight undercover police officers to give their evidence wearing disguises.

The prosecution appealed the decision not to grant anonymity to the Court of Appeal but the three defendants were subsequently acquitted in September.

The development, which is only now being publicised by the Detail, marks a significant departure from how cases involving undercover officers have been run in recent years.

It indicates a shift on the part of the courts from automatically screening all undercover police officers from the view of the accused and explicitly challenges a protocol drawn up by police on the subject, which is only now coming to light.

LEGAL EXPERT SAYS RULING RAISES ISSUE FOR UNDERCOVER POLICE

But a senior academic says the ruling now raises important questions surrounding the challenges for the courts over how to protect the identity of undercover police while also safeguarding the legal entitlement of defendants to face their accusers.

Professor Sally Wheeler of Queen’s University’s School of Law says that the ruling has now thrown the PSNI’s use of undercover officers in to question.

At the centre of the case is a PSNI protocol which has been confidential until now. The Detail can reveal that it has been in place for nearly four years, and states that no undercover officer should give evidence in a criminal trial unless they are granted anonymity.

The protocol, which has been kept a tightly-guarded secret, was first admitted during the trial of an east Belfast man facing robbery charges in October 2010, but never made public.

Under existing legislation undercover officers are entitled to anonymity if prosecutors can convince the court there is no other alternative and their safety will be put in danger if their identity is exposed.

However during that 2010 trial it emerged that every undercover PSNI officer who was due to give evidence since November 2008 had applied to the courts for anonymity.

The trial heard evidence from a Detective Chief Inspector, identified in court as second-in-command of the PSNI’s undercover surveillance unit.

The DCI told the court that officers involved in the case wanted to give evidence but he would have to consider refusing them permission unless they were granted anonymity.

He told the court the officers all felt their lives would be put in danger if their identities were exposed to the defendants.

The trial was also told that any officer who was forced to give evidence, without first being given anonymity, would be compromised and could no longer be used for surveillance duties.

He said the officers, frequently worked in highly vulnerable situations, carrying out surveillance on some of the most dangerous and violent criminals in Northern Ireland.

He refused to tell the court how many PSNI officers, nicknamed `Oscars’ by the legal fraternity, were involved in surveillance operations.

He did reveal that on average only six out of every 100 officers who applied to join the surveillance unit was successful, at a cost of £100,000 to train each recruit over a two year period.

However it emerged that two of the officers who had applied to be screened had previously given evidence without anonymity at another trial and, despite claims, had been allowed to return to undercover operations by their superiors.

It was also revealed that each of the officers had submitted identical applications for anonymity citing the same fear for their lives.

JUDGE REFUSES BLANKET ANONYMITY FOR UNDERCOVER PSNI

Commenting on the PSNI practice of providing officers with a universal template for anonymity, the 2010 trial judge Geoffrey Miller QC said:

“One is left with the clearest impression that each has simply filled in a blank section in what is otherwise a stand pro forma document…. in such circumstances it is argued that the court when reaching a determination as to whether to grant a witness anonymity application can place little or no reliance upon a purported assertion of fear in such a document.”

Highlighting the legal difficulties which the PSNI protocol had now created for the courts, he said:

“It has long been accepted by these courts that undercover officers, be they policemen or soldiers should have their identity concealed, because once their identity is revealed their future usefulness as such is gravely impaired and in all likelihood completely destroyed.

“That said it cannot be the case that without more a witness anonymity application should be granted simply because the witness is an undercover police officer. The Crown must show to the requisite standard, namely beyond reasonable doubt, that there would be real harm to the public interest if the witness were to testify without the proposed order.

“My concern in this case is that on or about the 17th November 2008 the ACC (assistant chief constable) on behalf of the Chief Constable of the PSNI adopted a policy decision that no undercover officer should be required to give evidence unless granted anonymity.

“That as a decision is both understandable and justifiable. It does not, however, remove the obligation upon the prosecution of establishing that such a measure in any given circumstance is “necessary.”

While describing the undercover officers who gave evidence to the court as “professional, direct and honest”, Mr Justice Miller added:

“My concern is that the adoption of the policy and the drafting of the pro-forma template led the police to derogate, (in this case at least) from their responsibility to provide detailed evidence in support of this application. The fact that the same statement was used in precisely the same way by each officer leads me to the conclusion that I could not distinguish between each so as to treat (officers) O355 & O357 differently from the other officers.”

Earlier this year three west Belfast men accused of conspiracy to rob a cash-in-transit van were also acquitted by the Court of Appeal following judge Burgess’ decision not to grant anonymity to police witnesses.

At the original trial, Mr Justice Burgess highlighted undercover officers’ insistence that they would not give evidence unless granted anonymity, and he said:

“In their depositions for the purposes of the application each of the witnesses in similar if not exactly the same terms state that they will not testify if the proposed (anonymity) order isn’t made.

“They refer to their concerns for the safety of their families and for their own safety.

“That concern they state arises from the fact that as undercover officers they are in an exposed position and would be amenable to attack from what they refer to as serious criminals or terrorists.

“No evidence was given as to any specific threat that any of these defendants would pose to any of the officers.

“There is no evidence of any terrorist or paramilitary involvement placed before this court.”

Pointing out that in the past the threat from paramilitaries had often persuaded the courts to grant anonymity to police witnesses, Mr Justice Burgess said:

“Such involvement has been the backdrop in many of the applications in other trials, where a court could take judicial notice of the fact that whilst a particular defendant may not in him or herself be shown to pose a threat to a particular officer or soldier, the membership of a terrorist group of that person would be highly relevant, given the willingness of such groups to attack and murder members of the police and the military. That aspect does not arise in this case.”

He said the PSNI had no legal entitlement to expect a blanket anonymity for all undercover officers, without evidence of a proven threat to the individual, stating:

“The judgement of His Honour Judge Miller in the case of Bowe & Others refers to the determination by the Police Service of Northern Ireland to adopt a general policy that undercover officers should always be the subject of applications for anonymity orders, no matter what the facts or considerations of any individual case may be.

“It would have been open to the legislature to make such a provision at least technically, although the court itself would at all stages still be concerned as to the overriding right of any defendant to obtain a fair trial.”

He said that instead a series of protections were enacted to ensure the protection of officers.

Addressing the issue of undercover officers submitting almost identical anonymity applications to the court, he said:

“It will always be a matter of concern if matters are simply written down and assertions made without evidence or without grounds being disclosed as to why in a particular case a particular risk or factor should be taken into account by the court as it relates to the particular defendants before the courts.

“This application suffers to some extent from that deficit. No attempt has been made to relate any of the risks or dangers from these particular defendants or this particular offence.

“Without such particularisation and without such grounds, the court will be left in the position of concluding that the prosecution have not discharged their burned of proof to the required standard in respect of each of the matters required to be addressed by it before such orders are made.”

The case now raises major questions about the legality of the PSNI protocol for undercover officers and whether police chiefs will be forced to abandon the use of surveillance officers following the judicial rulings.

Queen’s University School of Law head Professor Sally Wheeler believes that the refusal to grant anonymity in the cases highlights the real problem that the courts now face in safeguarding the legal rights of defendants while protecting the identity of undercover officers.

“It’s a very interesting case,” she said.

“There are two competing interests.

“There are the interests of the defendant in having the right to see his accuser and then you also have the public interest.

“The two interests will nearly always be aligned.

“It will nearly always be in the public interest that a defendant is allowed to see his accuser. That is the position from which the court starts from. “

But in order to protect undercover police officers the court can in certain special circumstances grant anonymity so that the lives of the officers are not put in danger.

“The defendant has a right to see his accuser but the legislation creates certain circumstances in which the court might take that away.

“It’s in the gift of the court to take it away, but ordinarily you have the right to see your accuser.”

However as anonymity can only be granted if there is evidence of a specific threat to the individual officer, she said:

“The court is only going to derogate or depart from that in very special circumstances and a general (PSNI) protocol does not capture those circumstances.”

But Professor Wheeler says that the court’s rejection of blanket anonymity for undercover officers has now created major difficulties for both the PSNI and Public Prosecution Service (PPS).

“I think the biggest problem it creates for the prosecution service is that they are going to have to go back now and look at every time undercover officers are in the field.

“They (PSNI) can’t use the (November 2008) protocol, so essentially what they are going to have to do is an individual risk assessment for every officer.

“They might in fact have to consider whether the use of undercover officers is actually appropriate given that, without a specific risk, they are not going to get an (anonymity) order.”

Highlighting the difficulties which the court’s decision to refuse universal anonymity orders may cause for undercover officers involved in both evidence and intelligence gathering, she said:

“It goes to the heart as to whether they (PSNI) use undercover police officers and whether they use what those undercover police officers gather in the evidential process or not.

“It does have an operational implication.

“Undercover officers may have to give evidence in open court, unless under the statute the PSNI can get an anonymity order for them.

“There’s no guarantee that the PSNI can obtain anonymity orders for undercover officers.

“It is up to the court.”

The Detail asked the PSNI what effect the Court of Appeal verdict would have on undercover officers being compelled to give evidence in court without any guarantee of anonymity.

We also asked if the protocol was still in place and if it had now been replaced for a copy of the new protocol.

Despite the request being submitted as a regular press enquiry (which should normally be responded to within a maximum of two working days) the PSNI refused to answer the inquiry, insisting it must be treated as a Freedom of Information request which usually means a wait of 20 working days

We also made the same press enquiry to the Public Prosecution Service (PPS) which responded with a spokesperson stating: “Where it is required to make an application to the courts, we will continue to do so.”