Da Silva & Ors, R (on the application of) v Secretary of State for the Home Department & Anor, Court of Appeal - Administrative Court, November 07, 2018, [2018] EWHC 3001 (Admin)

Resolution Date:November 07, 2018
Issuing Organization:Administrative Court
Actores:Da Silva & Ors, R (on the application of) v Secretary of State for the Home Department & Anor

Case No: CO/2826/2018

Neutral Citation Number: [2018] EWHC 3001 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 7 November 2018

Before :


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Between :

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Phillippa Kaufmann QC and Ruth Brander

(instructed by Birnberg Peirce) for the Claimants

Clair Dobbin (instructed by Government Legal Dept.) for the Defendant

Hearing date: 23 October 2018

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JudgmentMr Justice Supperstone :


  1. This is a renewed application by the Claimants for permission to challenge the decision of the Secretary of State not to appoint additional panel members to the Undercover Policing Inquiry (``the Inquiry''), chaired by Sir John Mitting. The application for judicial review is based upon a letter dated 21 June 2018 which was sent by the Secretary of State to the Claimants' solicitors (``the 21 June letter'').

  2. The Claimants are Core Participants (``CPs'') in the Inquiry.

  3. Permission was refused on the papers by Andrew Baker J on 13 September 2018.

  4. Ms Phillippa Kaufmann QC and Ms Ruth Brander appear on behalf of the Claimants. Ms Clair Dobbin appears on behalf of the Secretary of State.

    Factual Background

  5. On 6 March 2014 the then Secretary of State for the Home Department (``the Secretary of State''), the Rt. Hon. Theresa May MP, in a statement to Parliament, announcing the findings of the Stephen Lawrence Independent Review by Mark Ellison QC, announced that there would be a judge-led statutory inquiry into undercover policing and the operation of the Special Demonstration Squad (``SDS''), a policing unit within the Metropolitan Police Service (``MPS'').

  6. By a written statement to the House of Commons on 12 March 2015 the Secretary of State stated that she had decided to establish the Inquiry under the Inquiries Act 2005 (``the 2005 Act''), and that it would be chaired by Lord Justice Pitchford.

  7. The Terms of Reference of the Inquiry, as announced by the Secretary of State on 16 July 2015, are:


  8. To inquire into and report on undercover police operations conducted by English and Welsh police forces in England and Wales since 1968 and, in particular, to:

    · investigate the role and the contribution made by undercover policing towards the prevention and detection of crime;

    · examine the motivation for, and the scope of, undercover police operations in practice and their effect upon individuals in particular and the public in general;

    · ascertain the state of awareness of undercover police operations of Her Majesty's Government;

    · identify and assess the adequacy of the:

  9. justification, authorisation, operational governance and oversight of undercover policing;

  10. selection, training, management and care of undercover police officers;

    · identify and assess the adequacy of the statutory, policy and judicial regulation of undercover policing.

    Miscarriages of justice

  11. The inquiry's investigations will include a review of the extent of the duty to make, during a criminal prosecution, disclosure of an undercover police operation and the scope for miscarriage of justice in the absence of proper disclosure.

  12. The inquiry will refer to a panel, consisting of senior members of the Crown Prosecution Service and the police, the facts of any case in respect of which it concludes that a miscarriage of justice may have occurred as a result of an undercover police operation or its non disclosure. The panel will consider whether further action is required, including but not limited to, referral of the case to the Criminal Cases Review Commission.


  13. The inquiry's investigation will include, but not be limited to, whether and to what purpose, extent and effect undercover police operations have targeted political and social justice campaigners.

  14. The inquiry's investigation will include, but not be limited to, the undercover operations of the Special Demonstration Squad and the National Public Order Intelligence Unit.

  15. For the purpose of the inquiry, the term `undercover police operations' means the use by a police force of a police officer as a covert human intelligence source (CHIS) within the meaning of section 26(8) of the Regulation of Investigatory Powers Act 2000, whether before or after the commencement of that Act. The terms `undercover police officer', `undercover policing', `undercover police activity' should be understood accordingly. It includes operations conducted through online media.

  16. The inquiry will not examine undercover or covert operations conducted by any body other than an English or Welsh police force.


  17. The inquiry will examine and review all documents as the inquiry chairman shall judge appropriate.

  18. The inquiry will receive such oral and written evidence as the inquiry chairman shall judge appropriate.


  19. The inquiry will report to the Home Secretary as soon as practicable. The report will make recommendations as to the future deployment of undercover police officers.

    It is anticipated that the inquiry report will be delivered up to three years after the publication of these terms of reference.''

  20. Sir Christopher Pitchford, in his Opening Remarks to the Inquiry on 28 July 2015, having noted that ``this Inquiry will investigate the evolution of undercover policing for all purposes, not just in the Metropolis but throughout England and Wales'' (para 11), stated that the Inquiry will examine:

    ``(i) the part undercover policing has had in, and the contribution it has made to, the prevention and detection of crime;

    (ii) the nature and scope of undercover police activities as they have been conducted in practice;

    (iii) the intended purpose of or motivation for undercover police activities;

    (iv) the role and knowledge of Her Majesty's Government, and in particular the Home Office, in undercover police activities;

    (v) the effect of undercover police activities upon individuals and the public;

    (vi) the stated justification for undercover policing both in general and in particular instances;

    (vii) the systems from time to time in place for the authorisation of undercover police operations, their governance and political oversight;

    (viii) the selection, training, management and care of undercover police officers; and

    (ix) the statutory, policy and judicial regulation of undercover policing.'' (para 12)

  21. Sir Christopher continued:

    ``In the course of its investigation the Inquiry will need to examine any evidence of the targeting of individuals for their political views or participation in social justice campaigns.'' (para 13)

  22. On 25 July 2017 Sir John Mitting took over as Chair upon Sir Christopher's retirement due to ill health. In his opening remarks to the Inquiry on 20 November 2017 Sir John referred to the last sentence of paragraph 17 of Sir Christopher's opening remarks, where Sir Christopher said, ``The Inquiry's priority is to discover the truth''. Sir John continued:

    ``That is my priority. It is only by discovering the truth that I can fulfil the terms of reference of the Inquiry. I am determined to do so. In making procedural decisions about the conduct of the Inquiry I will do nothing which I can legitimately avoid which makes fulfilment of that intention more difficult. I will also make no decision whose purpose is not to fulfil that aim.'' (para 3)

  23. Sir John concluded his opening remarks by re-iterating ``the principal purpose of the Inquiry: to get to the truth about undercover policing''. (para 22)

  24. In May 2018 Sir John published the Inquiry's ``Strategic Review''. In the Foreword Sir John wrote:

    ``(i) The Inquiry is at a crossroads. Its preliminary stages will soon be complete.


    (ii) The premise of the strategic review is that the inquiry into past events will be conducted by me, as chairman, alone. To fulfil its terms of reference, the Inquiry has undertaken to find out, in detail, what happened and why in two police units--the Special Demonstration Squad and the National Public Order Intelligence Unit--over 40 years and to examine successor units since. This will require tens of thousands of documents to be read and the evidence of at least 250 police witnesses to be received and considered. The appointment of additional members to the panel (currently consisting of me, as chairman, alone) would impose a heavy cost in both time and money - the plans set out in the strategic review could not be achieved within the already lengthy timeframe envisaged.

    (iii) It is not only the Inquiry which is at a crossroads. If, as has been reported, some non-state core participants are undecided whether or not to continue to participate in the Inquiry, the time for decision will soon arrive. The strategic review sets out how the Inquiry will attempt to find out what happened and why on the assumption that non-state core participants do participate. I do not intend to use coercive powers to make them do so. If they do not, the Inquiry will get as close to the truth as it can without them. There is abundant material in the police files, in the public domain and in the unpublished records of the Herne and Elter investigations. Every former Special Demonstration Squad and National Public Order Intelligence Unit officer able to do so will be required to provide a detailed written statement. The restriction order process has led to officers providing a fuller and, in some cases, franker account of their time undercover than has previously been avowed. I have every reason to believe that the need to give evidence on oath to the Inquiry will lead to further revelations. The absence of evidence from significant non-state witnesses would of course be regrettable and would mean that the foundation for the findings of fact which I could make would be less extensive than...

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