England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		7 November 2018

Mr Justice Supperstone :

Introduction

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:

"Purpose

1. 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:

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

2. 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

2. 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.

3. 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.

Scope

4. 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.

5. 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.

6. 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.

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

Method

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

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

Report

10. 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."

8. 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)

9. 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)

10. 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)

11. 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)
12. 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 would be the case with it; but it would not undermine the purpose of the Inquiry. What would be lost would be a full account of what happened to them.

…

(vi) Once the facts have been found, it would be both practicable and desirable for a wider panel to be recruited to investigate and consider the current state of undercover policing and to make recommendations to the Home Secretary for the future. Profound and, perhaps, difficult questions exist as to the circumstances, if any, in which undercover police officers should be deployed. There is likely to be widespread agreement that their deployment is justified to prevent and/or investigate very serious crimes, including those which put the lives and safety of the public at risk. There will be many different views on the justification for deployments in other circumstances, such as the prevention or control of public disorder. On these issues, extensive public debate and the opinions of a diverse panel would be welcomed by me and, I anticipate, be required to found recommendations for the future capable of commanding widespread public support. …"

13. In Part one of the Strategic Review, at paragraph 8, it is noted:

"The Inquiry is investigating undercover policing from 1968, including serious and widespread concerns about undercover policing and the behaviour of some police officers. They include:

Women discovering that, unbeknown to them at the time, their partners were in fact serving undercover police officers;

Children born as a result of such relationships;

Undercover police officers have reported on family justice campaigns and social and environmental campaigners;

There had been reporting on political activism, and the activities of some politicians;

There was concern that undercover police officers had reported on trade union activity and may have played a role in the blacklisting of workers;

The identities of deceased children were used by some undercover police officers to help build false personas;

Concerns that there may have been miscarriages of justice;

Allegations that officers may have committed serious crimes while undercover."

14. Paragraph 18 of Part one of the Strategic Review notes that the Inquiry's investigations are broken down into three modules:

"One.

Examination of the deployment of undercover officers in the past, their conduct, and the impact of their activities on themselves and others.

Two.

Examination of the management and oversight of undercover officers, including their selection, training, supervision, care after the end of an undercover deployment and the legal and regulatory framework within which undercover policing is carried out. Module Two(a) will involve managers and administrators from within undercover policing units. Module Two(b) will involve senior managers higher in the chain of command as well as police personnel who handled intelligence provided by undercover police officers. Module Two(c) will involve a number of other government bodies with a connection to undercover policing, including the Home Office.

Three.

Examination of current undercover policing practices and of how undercover policing should be conducted in future."

15. At the time of the Strategic Review the Inquiry had 207 core participants. This figure includes a number of groups and organisations that have been awarded core participant status. The number of individuals involved as core participants is considerably higher.
16. The Strategic Review gives the end of 2023 as the date on which Module Three will be completed and the Final Report delivered to the Home Secretary, ahead of publication (para 4).

Legislative Framework

17. The 2005 Act, s.1(1) states that a Minister may cause an inquiry to be held under this Act in relation to a case where it appears to him that (a) particular events have caused, or are capable of causing, public concern, or (b) there is public concern that particular events may have occurred.
18. S.3 headed "The inquiry panel" states that "(1) an inquiry is to be undertaken either (a) by a chairman alone, or (b) by a chairman with one or more other members".
19. S.7 provides, so far as is material:

"Further appointments to inquiry panel

(1) The Minister may at any time (whether before the setting-up date or during the course of the inquiry) appoint a member to the inquiry panel—

(a) to fill a vacancy that has arisen in the panel (including a vacancy in the position of chairman), or

(b) to increase the number of members of the panel.

(2) The power to appoint a member under sub-section (1)(b) is exercisable only—

…

(b) with the consent of the chairman."

20. S.8(1) provides:

"Suitability of inquiry panel

In appointing a member of the inquiry panel, the Minister must have regard—

(a) to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry;

(b) in the case of an inquiry panel consisting of a chairman and one or more other members, to the need for balance (considered against the background of the terms of reference) in the composition of the panel."

21. S.9 is headed "Requirement of impartiality". Sub-section (1) provides that:

"The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a) a direct interest in the matters to which the inquiry relates, or

(b) a close association with an interested party,

unless, despite the person's interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel."

22. S.38 provides:

"Time limit for applying for judicial review

(1) An application for judicial review of a decision made—

(a) by the Minister in relation to an inquiry, or

(b) by a member of an inquiry panel,

must be brought within 14 days after the day on which the applicant became aware of the decision, unless that time limit is extended by the court."

The Decision Challenged

The Correspondence

23. On 2 August 2017 Ms Jane Deighton of Deighton Pierce Glynn, writing on behalf of her client Mr Duwayne Brooks, who is a core participant in the Inquiry, urged the Secretary of State to consider appointing additional members to the Inquiry. Noting that the Inquiry is about undercover policing "which involves issues of policing and also sexism, racism, political, community and trade union activity, police misconduct and environmental and other issues, direct action, parliamentary action, criminal activity, the law and much more", Ms Deighton wrote:

"The Chair is of course a single person with the limited experience of being a full-time specialist Judge. It can only be useful to broaden the perspective of the Inquiry by adding a panel."

24. Ms Deighton, having expressed the view that the Inquiry "is moving dangerously slowly", suggested that it "can be sped up and made more efficient by the appointment of a panel", in particular by the appointment of a co-chair from the panel.
25. In response, replying to that letter on 17 November 2017 the Rt. Hon. Amber Rudd MP, the then Secretary of State, stated that she had concluded that the appointment of a second chair is neither practicable nor permissible under the Act. However, she went on to say:

"… with the appointment of a new Chair to the Inquiry, and now that the Inquiry has been running for two years, this would appear an opportune moment to ensure that the Inquiry has the most effective structures in place.

I will carefully consider the representations made in your letter but I must also consider the counter-points; for example a single chair is often able to work through complex issues decisively. To assist my consideration of this matter, I will seek the views of the Inquiry Chair.

Once I have seen the views of the Chairman and considered this matter fully I will write again to you setting out my considered opinion."

26. On 2 March 2018 the Secretary of State wrote further to Ms Deighton:

"After consulting the Chair I am satisfied that the Inquiry has the resources and expertise necessary to deliver its current programme of work. Sir John Mitting is an extremely experienced High Court Judge, has demonstrated his fairness and independence throughout his career, and he has my full support. I am confident in the Chair's suitability and impartiality for continuing his predecessor's approach and discovering the truth in the most open manner possible.

It is important that the Inquiry is able to carefully consider the evidence it has received in order to fulfil its terms of reference. However, as the Inquiry progresses through its phases of work, I will keep the need for panel members under review."

27. On 29 March 2018 Mr Cyrille Marcel, on behalf of the Secretary of State, wrote to Ms Deighton, responding (1) to further representations in support of appointing panel members in Ms Deighton's letter of 26 February, which was not seen before the Secretary of State wrote her letter of 2 March, and (2) Ms Deighton's e-mail of 23 March in which she referred to the 2005 House of Commons Public Administration Select Committee report which recommended "that where judges are seen as the most appropriate chair, they should usually be appointed as part of a panel or be assisted by expert assessors or wing members" [3.45].
28. In her letter of 26 February 2018 Ms Deighton contended that it remained the case that the Inquiry can only benefit from the Chair being assisted by a diverse panel. In the context of considering applications by certain former undercover officers for Restriction Orders on cover and/or real names, and in particular in relation to one such officer known as HN58, Ms Deighton referred to the terms of a note issued by the Chair on 20 December 2017, following a hearing on 21/22 November 2017, indicating that he was minded to restrict both the cover and real names of HN58, and that any evidence about his deployment will be given in closed session. The Chair wrote:

"Because there is no known allegation of misconduct against him when deployed as an undercover officer and because the nature of his deployment and what is known of his personal and family life make it unlikely that it would be necessary to investigate possible misconduct even if details of his deployment were made public." (Minded-to note 20/12/17, para 5)

At a hearing on 5 February 2018 Ms Kaufmann, on behalf of the non-state non-police core participants, submitted that wrongdoing could not be ruled out on the basis of an individual's personal or family circumstances. Ms Deighton said that in response "the Chair underlined the nature of his assumptions". However, on hearing an example of an officer whose marriage survived relationships with "other women", the Chair said:

"Alright. I may stand accused of being somewhat naive and a little old-fashioned. In which case I own up to both of those things and will take into account what everybody says about it, and I will revisit my own views."

Ms Deighton said that "In the event the Chair restricted both the real and cover names albeit with varied reasons (Ruling 22/2/2017)".

29. Ms Deighton suggests that 7 significant points arise from these matters:

"1. The Chair made assumptions about what a man's marital history says about his propensity to misconduct himself at work. The assumptions are demonstrably wrong and should play no part in this Inquiry.

2. The Chair admits these assumptions stem from 'the experience of life'. There is little to suggest that there is sufficient cross-over in his experience of life with that of those spied upon or the undercover officers to justify this.

3. That these assumptions have played a role taints judgments the Chair makes about the behaviour and credibility of officers and/or public confidence in those judgments. This concern is rendered all the more serious by the fact that the role of sexism is an issue in this Inquiry.

4. The Chair admits to being 'somewhat naïve and a little old-fashioned'. Such traits should play no part in this Inquiry.

5. In part biased by those assumptions the Chair is prepared to protect the anonymity of a key officer in the Inquiry thus effectively preventing the Inquiry hearing evidence from those he impacted on—either about what he did or about the effect on them of what he did.

6. That he is prepared to investigate this officer without evidence from those impacted upon i.e. largely on the basis of evidence from the police will undermine the findings of and public confidence in the Inquiry. It will disable the Inquiry from scrutinising the conduct of this officer.

7. Further it highlights the failure of the Chair to recognise the crucial role that those spied upon should have in this Inquiry. This not only damages the Inquiry but is offensive to those who have been spied upon."

30. Responding to these concerns, Mr Marcel wrote:

"Your letter of 26 February includes various Chair quotes to highlight concerns about a risk that decisions on anonymity applications from undercover officers may be in part biased by the Chair's assumptions. However, taking into account the full transcripts of open hearings, it appears that the Chair has kept an open mind and accepted the force of arguments put forward by legal representatives to challenge assumptions made in 'minded to' notes and subsequent rulings on anonymity applications. As quoted in your letter, the Chair has stated that he 'will revisit my own views'. He has confirmed that, having done so, the fact that he may not arrive at a different judgment 'doesn't mean to say that I do not accept that I did not accept it had force'.

I also understand that at the 21 March preliminary hearing the Chair said that 'every case does have to be decided on its own facts'. This followed the Chair's statement of 22 February, which recognised that a judgment must be drawn by the Inquiry but that this will remain open to challenge by both officers and non-police non-state core participants. In addition, the statement makes clear that judgments may be subject to review taking into account new evidence that may come to light as the Inquiry progresses."

31. Mr Marcel also dealt in his letter of 29 March with the reference to the 2005 House of Commons Public Administration Select Committee report. He pointed out that the Government subsequently accepted the House of Lords Select Committee's recommendation, in its 2014 post-legislative scrutiny of the 2005 Act, that an inquiry panel "should consist of a single member unless there are strong arguments to the contrary". The Government responded that this would be "invariably the case and an important consideration in controlling the cost of inquiries".
32. Mr Marcel concluded his letter of 29 March by stating, "I hope that my response provides some reassurance on the department's position".
33. On 3 April 2018, Ms Harriet Wistrich of Birnberg Pierce wrote to the Secretary of State attaching a letter of the same date from 13 women she represented. In their letter they referred to the recent "minded to" notes and in particular to the comments of the Chair at the hearing on 5 February 2018, which they stated "demonstrate that he is not suited to the task of investigating serious human rights abuses committed by these undercover policing units".
34. On 11 April Ms Deighton replied to Mr Marcel's letter of 29 March. She wrote:

"… As to his open mind, we agree that the Chair stated that he would revisit his views and stated that when he did not change his mind it did not mean that he did not accept arguments against him had force. The fact remains however that he did not change his mind on the basis of NPNSCPs [non-police non-state core participants] submissions. He has never done so… This intransigence is worrying enough in itself. However you will understand that it is exceptionally worrying that the only basis for a change of mind was the introduction of new evidence. …

As to bias, Cyrille Marcel misunderstands the primary concern of my client. It is not bias against him or other NPNSCPs, it is a concern that there appears to him to be a fundamental lack of understanding about the experience of those spied upon, their dignity and value to the Inquiry, the principles of openness and thoroughness and the means of achieving it. …

Lastly Cyrille Marcel omits a worrying extract of the transcript of March 21 from his letter. In this extract the Chair intimated he made the offending remarks about marital life and likelihood to misconduct 'in the hope that it would prompt reactions from people' (p.34). This is not an approach that my client who is seriously and emotionally engaged in this Inquiry can be expected to stomach.

In the light of this and our previous letters my client asks you to consider the urgent appointment of a panel now."

35. On 24 April Kellys wrote to the Secretary of State on behalf of the NPNSCPs, re-iterating the concerns expressed by Ms Deighton about the Chair's oral comments and "written decisions", asking her to reconsider the appointment of additional members to the Inquiry panel. They wrote:

"… The appointment of a more diverse panel only at the 'lessons learned stage' would be far too late. The ability of the panel to identify the lessons to be learned for the future will depend on the quality of the assessment of what happened in the past. … (page 3)

The assessments required in the context of this Inquiry are not limited to determinations of fact, which are then to be applied within the framework of applicable law (although both such tasks will be required), a crucial additional step is that the panel will inevitably be engaged in sensitive value judgments at every stage of the process. …" (page 3)

36. The letter continues:

"Second, in light of the approach being taken by the Chairman to anonymity decisions…, it is now clear that significant proportions of the Inquiry's proceedings will take place in closed session, from which both the public and all those other than the police and other state agencies will be excluded. The consequence of this is that the important benefits of open justice – judicial accountability, public scrutiny, informed public debate and confidence in outcomes – will be diminished. This is an additional feature of this Inquiry which sets it aside from most other inquiries and which off-sets many of the advantages of having a lone chairman. In the context of hearings from which the public and dissenting evidence is excluded, it is likely to be a positive advantage for there to be a panel with a range of views. Although a diverse panel cannot replace the benefits of public scrutiny, it would at least provide some element of check on the unscrutinised decision-making of a single individual – a factor which is likely to weigh heavily on public confidence." (pages 4-5)

37. On 21 June 2018 the present Secretary of State, the Rt. Hon. Sajid Javid MP, wrote to Ms Wistrich in response to her letter of 3 April to the former Secretary of State:

"I take your client's concern very seriously. I am committed to ensuring that the Inquiry can deliver its important work to get to the truth of what happened and ensure that all lessons are learned to restore public confidence in undercover policing.

Restriction orders are a legal matter for the Inquiry as the Inquiries Act 2005 provides for the Chair alone to make restriction orders. Safeguarding the independence of the Inquiry is of paramount importance, and it would not be acceptable for the Government to intervene in an Inquiry's decision-making. Also, noting your concerns, I understand Sir John Mitting has recognised that judgments made on applications for anonymity remain subject to review as the Inquiry progresses.

On the need for additional panel members, the Inquiry has now published its Strategic Review, which sets out the Chair's views and intentions to ask the Home Secretary to appoint a panel to inform the Inquiry's lessons-learned stage. In line with the former Home Secretary's commitment I will continue to keep the need for a panel under review."

The Parties' Submissions and Discussion

38. The Claimants' pleaded case is that the Secretary of State's decision not to appoint additional panel members communicated on 2 March 2018 was superseded by a further decision communicated on 29 March, prompted by new matters being brought to the attention of the Secretary of State that had not been under consideration when the decision communicated in the 2 March letter was taken. Consistently with the undertaking to keep the matter under review the Secretary of State took a further decision communicated in the letter of 21 June by reference to yet further new matters not previously considered in her letter of 2 March or in the letter of 29 March. In the alternative, if the Secretary of State's decision was taken on 2 March, the Secretary of State's refusal to reconsider her decision not to appoint additional panel members in light of the matters brought to his attention after the decision of 2 March was taken is unlawful (see Statement of Facts and Grounds ("SFG"), paras 45-52). Accordingly the claim is in time; alternatively, if the decision was taken on 2 March, time should be extended (on the grounds set out in the SFG, at para 90).
39. The application for judicial review was filed on 5 July 2018. It is the Secretary of State's case that the claim is significantly out of time. The then Secretary of State considered proposing the appointment of panel members having consulted with the Chair (and having taken into account a Public Sector Equality Duty ("PSED") assessment, see para 62 below)). She decided against that course and communicated her decision by the letter of 2 March. Any judicial review of that decision ought to have been filed within 14 days of it coming to the Claimants' attention (see para 21 above). Neither the letter of 29 March nor the letter of 21 June 2018 constituted a fresh decision.
40. During the course of her oral submissions Ms Kaufmann realistically accepted that the terms of the letters of 29 March and 21 June do not suggest that either of them constituted fresh decisions. Plainly that is so.
41. Accordingly, Ms Dobbin and Ms Kaufmann agree that the real issue on this application is whether there were material developments after the Secretary of State's decision communicated by the letter of 2 March 2018 (and supplemented by the letter of 29 March 2018) which required the present Secretary of State to consider afresh the decision made by his predecessor.

Grounds of Challenge

42. In summary Ms Kaufmann advances two grounds in support of the Claimants' contention that the Secretary of State acted unlawfully in refusing to reconsider the decision communicated by the letter of 2 March (supplemented by the letter of 29 March) 2018:

i) First, the Secretary of State failed to have regard to relevant considerations.

ii) The Secretary of State failed to have regard to sections 149(b) and (c) of the Equality Act 2010 ("EA 2010").

Further, Ms Kaufmann criticises the Secretary of State's response to the Pre-Action Protocol letter for containing what she contends is ex post facto reasoning.

Ground 1: Failure to have regard to relevant considerations

Representations made subsequent to 29 March 2018 and further evidence

43. Following the 29 March letter further letters were written to the Secretary of State on behalf of the NPNSCPs explaining "their mounting concern about the Inquiry's risk of failure should the Chair continue to sit as the sole panel member" (SFG, para 51). The matters drawn to the Secretary of State's attention after the 29 March letter (as at the time of the filing of the claim form) are stated in the SFG (at para 43) to be the following:

"(a) Both Kelly's letter of 24 April and the 13 women CPs' letter of 3 April raised the issue of the Chair's comments about married men first made at the hearing on 5 February. Significantly these representations addressed Mr Marcel's observations in the letter of 29 March that the Chair had revisited his views in light of the forceful arguments put forward to challenge his assumptions, and showed that this had not happened, but on the contrary the Chair had continued to make those assumptions.

(b) The letter of 24 April raised a further concern based on the fact that much of the Inquiry will be held in closed session from which the public and all non-state participants will be excluded. In so doing it also corrected a misapprehension on the part of Mr Marcel in his 29 March letter that the Chair had refused anonymity in the majority of cases.

(c) The e-mail of [23 May 2018] raised the further concern that, in the light of his comments at [iii] of the foreword to the Strategic Review [see para 12 above], the Chair believed that he could get to the truth without the meaningful participation of those spied on."

44. On 18 October 2018 a second witness statement of Ms Wistrich was served on behalf of the Claimants. Exhibited to the witness statement were transcripts of four meetings between the Chair and some core participants that took place on 17 May, 9 and 12 July, and 27 September 2018. Ms Wistrich comments (at para 11):

"I consider that the Chair made a number of comments at those meetings which support the Claimants' concerns, raised in these proceedings, that the Chair does not have the expertise to investigate, without the assistance of additional panel members, the extent to which institutional discrimination, on grounds of race, sex, political beliefs and socio-economic class, has shaped undercover policing, in particular that conducted by the Special Demonstration Squad and the National Public Order Intelligence Unit."

The Parties' Submissions and Discussion

45. Ms Kaufmann submits that there are three relevant considerations to which the Secretary of State has failed irrationally to have regard: first, the importance of ensuring public confidence in the conduct and outcome of the Inquiry; second, the importance of the meaningful participation of the NPNSCPs in the Inquiry and lack of confidence in the Chair on their part; and third, that the issue of discrimination whether by an individual or at an institutional level is an issue at the heart of the Inquiry and an area of expertise.
46. At the forefront of Ms Kaufmann's oral submissions is the contention that the failure to appoint additional panel members will frustrate the purpose of the Inquiry by undermining public confidence in its process and conclusions. Public concern is the reason for the establishment of an inquiry under the Act (s.1). It follows, she submits, that public confidence in an inquiry so established is an important factor in any decision concerning the functioning of the inquiry, including the composition of the panel. That being so, Ms Kaufmann submits the statute requires the Minister, if not expressly, by implication to have regard to the issue of public confidence when considering the appointment of panel members (CRENDNZ Inc v Governor General [1981] 1 NZLR 172 at 182-183). Public confidence is, she submits, "a consideration [that] arises as a matter of necessary implication because it is compelled by the wording of the statute itself" (R on the application of DSD v Parole Board of England and Wales [2018] EWHC 694 (Admin) at para 141). Accordingly, she contends that it is irrational not to give weight to the need to maintain public confidence in the Inquiry when considering whether to appoint additional panel members. Yet there is nothing in the Secretary of State's letters of 2 March, 29 March or 21 June 2018 to indicate that ensuring public confidence in the conduct and outcome of the Inquiry was taken into account.
47. However, as Bean LJ stated, at para 31, in R on the application of Daniels v the Rt. Hon. Theresa May, Prime Minister [2018] EWHC 1090 (Admin), a case concerned with the appointment of the inquiry panel for the Grenfell Tower Inquiry established under the 2005 Act:

"Only two factors are expressly mandated by the 2005 Act to be taken into account in the appointment of an inquiry panel. Section 9 has a prohibition on appointing to the inquiry panel anyone with a direct interest in the subject matter or a close association with an interested party, except where the appointment could not be reasonably regarded as affecting the impartiality of the inquiry panel. Section 8(1)(a) mentions 'the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry'; and section 8(2) adds that for the purposes of section 8(1)(a) the minister may have regard to the assistance that may be provided by any assessor who is to be appointed. If an inquiry panel is appointed consisting of a chairman and one or more other members, then section 8(1)(b) requires the minister to have regard to the need for balance (considered against the background of the terms of reference) in the composition of the panel. But section 8 does not state that a panel consisting of a chairman and other members is more desirable in the interests of balance in the diversity sense than an inquiry panel consisting of a chairman alone…"

48. The 2005 Act does not require that a Panel be appointed having regard to considerations of public confidence. That being so, beyond expertise and impartiality, it was for the Secretary of State to identify the matters he regarded as relevant to his decision (R (Khatun) v Newham LBC [2005] QB 37 at para 35). Further, the weight to be attached to those matters was also a matter for the Secretary of State (Secretary of State for the Home Department v AP (No.1) [2011] 1 CA 1), subject only to a challenge on Wednesbury grounds.
49. Ms Kaufmann submits that the importance of securing the confidence and participation of the NPNSCPs, among whom are the victims of wrongdoing by undercover policing, is two-fold: first, if those individuals who were or may have been impacted do not feel confident in the Inquiry's ability to get to the truth, then it is failing those who, in particular, it is intended to serve; and second, their participation is essential to the Inquiry's ability to get to the truth about what occurred. They alone can account for what happened to them and the impact of that on them. Previous investigations and reviews into the SDS and the National Public Order Intelligence Unit ("NPOIU") have demonstrated that it is only where those spied upon have been able to give their accounts that information about wrongdoing has come to light.
50. The Claimants further contend issues of institutional sexism and racism (as well as political policing) go to the heart of the undercover policing the Inquiry is to explore in all modules of its investigation. Yet the Secretary of State's decision of 2 March and the letters of 29 March and 21 June fail to acknowledge that these issues are central to the Inquiry's fact-finding exercise. The Claimants are concerned that the evidence demonstrates the Chair is not familiar or comfortable with contemporary understanding of discrimination issues. The assessment of discrimination is an area of special expertise (see the observations of Clarke LJ in Cary v Commissioner of Police of the Metropolis (EHRC intervening) [2015] ICR 71 at para 51). The Claimants do not suggest that the Chair is biased or that his objective is other than "to get to the truth about undercover policing" (see para 11 above); rather their concern is his lack of understanding of discrimination issues and expertise in this area.
51. However it is clear from the decision of 2 March and the letters of 29 March and 21 June that the Secretary of State did in fact have regard to the contention that the appointment of Panel members would add to the expertise of the Panel in discrimination matters and thereby increase public confidence, (see the Policy Equalities Statement ("PES") dated 14 February 2018, para 62 below), but after consulting the Chair the Secretary of State was satisfied that, as she said in her letter of 2 March 2018, "the Inquiry has the resources and expertise necessary to deliver its current programme of work" (see para 26 above). The present Secretary of State is clearly of the same view, having had regard to the Strategic Review (see para 37 above). The criticisms of the Chair's expertise have been rejected by the previous Secretary of State in March 2018 (by letters dated 2 and 29 March) and by the present Secretary of State in June 2018 (by letter dated 21 June). The Inquiry has very broad terms of reference, covering more than 40 years of all undercover policing in England and Wales. Modules One and Two involve an intensive fact-finding exercise. The Secretary of State was entitled to reach the conclusion that Sir John Mitting, a highly experienced former High Court judge, has the necessary expertise and impartiality to conduct this exercise.
52. In the response (dated 18 July 2018) to the Pre-Action Protocol letter (dated 29 June 2018) the Secretary of State rejects the submission that judges are suited to fact finding but not making value judgments, or that there is a ready distinction between the two (para 5.57). Further, the Secretary of State does not accept that the Chair needs other individuals to provide expertise so as to enable him to make findings or come to judgments where those relate to matters such as intimate relationships conducted by undercover police officers, the extent to which such relationships were abusive or wrong, or where issues of race and gender are relevant to matters under consideration (para 5.58). Ms Kaufmann submits that these responses contain ex post facto reasoning for the decision made on 2 March. I do not agree. It seems to me that they reflect the key considerations which were taken into account by the previous Secretary of State on the issue of the appointment of panel members. They are summarised at paragraph 5.65 of the response:

"First: that the Chair had the requisite expertise to conduct the Inquiry; second: that the delay that would be engendered by the appointment of a panel would adversely impact upon the Inquiry's programme of work; third: that such delay would impact upon the interests of certain core participants with protected characteristics; and fourth: that the specific examples or transcript extracts relied upon did not demonstrate the Chair to be of a closed mind when it came to sensitive issues to be determined in the Inquiry."

53. The breadth of the terms of the Inquiry and the multiplicity of interests represented in it requires the Secretary of State to treat with caution opinions or representations submitted by any one core participant or group of core participants about the Inquiry or its Chair (see response to pre-action protocol letter at paras 5.13 and 5.14). That being so, if additional panel members were to be appointed, the Secretary of State would need to ensure that the appointments reflect the range of interests in the Inquiry and not just those identified by the NSNPCPs. I agree with Ms Dobbin that when considering "public confidence" in an inquiry the Secretary of State cannot consider it solely through the perspective of certain core participants. Regard must be had to all of the interests at stake and to wider considerations material to public confidence, such as the delay in making final recommendations that bear upon future practice. This inquiry is distinct in the very wide range of interests represented by some 200 or so Core Participants involved in it (see para 15 above).
54. I do not accept the Claimants' contention that the letter of 29 March 2018 contained a material error in stating that the Chair had kept an open mind and had accepted the force of arguments put forward in relation to views he had expressed in "minded to" notes and at the 5 February 2018 hearing about an officer's marital status making it less likely that he had engaged in sexual misconduct. I agree with Ms Dobbin that the Chair's ruling of 20 February 2018 contains a careful analysis as to the different approach to be taken to the officer (witness HN58) in his managerial and undercover capacities when considering the proper approach to take to a restriction order sought on his behalf, and how best to put his evidence before the Inquiry. I am not concerned on this application with whether this, or any, restriction order should have been made or not.
55. In considering whether additional panel members should be appointed the Secretary of State was entitled to have regard to the delay that would be caused by such appointment. Originally it was anticipated that the Inquiry report would be delivered by July 2018 (see para 7 above). The date now given in the Strategic Review is the end of 2023 (see para 16 above). Sir John is of the view that if additional members of the panel are appointed "the plan set out in the Strategic Review could not be achieved within the already lengthy timeframe envisaged" (see para 12 above). In her letter dated 2 August 2017 Ms Deighton said that the Inquiry was then "moving dangerously slowly" (see para 24 above), but suggested that the matters could be speeded up by the appointment of additional persons to the panel. Ms Kaufmann suggests that even if the panel as a whole must make joint findings, individual members could take a lead on reading the underlying material on a particular area and that such an approach could speed up the operation of the Inquiry.
56. I do not agree. A panel member is a full member of the panel; that being so a fact-finding panel cannot divide up fact finding tasks, nor consider portions of evidence in isolation from each other. Each member of the panel would have to read and consider "tens of thousands of documents" and "the evidence of at least 250 police witnesses" (see para 12 above). It was the practical ramifications of the need for a panel to act as an entity in undertaking the Inquiry and producing a report that informed the House of Lords recommendations that a panel should consist of a single member unless there are strong reasons to the contrary (see para 31 above).
57. In my judgment there have been no material developments since the decision of 2 March 2018 not to propose the appointment of further panel members. In those circumstances the Secretary of State was entirely justified in not re-making the decision prior to or at the time he wrote the letter of 21 June 2018. The material referred to in the second witness statement of Ms Wistrich (see para 44 above) was not seen by the Secretary of State before he wrote the 21 June letter. Moreover, three of the four meetings referred to post-date that letter. Only the meeting on 17 May took place before that date. I do not consider that any material new evidence arose from that meeting that could have required a reconsideration of the 2 March decision. As for the notes of the other three meetings, they also do not appear to raise any material new matters that could have required the decision to be considered afresh.
58. For these reasons I do not accept the Claimants' contention that there was an unlawful failure by the Secretary of State to have regard to the need to ensure public confidence or other relevant factors.

Ground 2: Failure to have regard to ss.149(b) and (c) of the Equality Act 2010

59. Ms Kaufmann submits that the Secretary of State failed to assess the risk and extent of any adverse impact (having regard to the matters identified in s.149 EA 2010) in maintaining the composition of the Panel. Ms Dobbin does not accept this criticism.
60. In R (Bracking) v Secretary of State for Work and Pensions [2013] EWCA Civ 1345, at paras 25-26, McCombe LJ summarised the key principles to be derived from the case law concerning the relevant duties and requirements placed on public authorities by s.149 (approved by Lord Neuberger in Hotak v London Borough of Southwark [2015] UKSC 30 at para 73)).
61. The Secretary of State states in his Pre-Action Protocol response and summary grounds of defence that the previous Secretary of State did have regard to the PSED when reaching her decision communicated on 2 March 2018.
62. The PES states, so far as is material:

"In light of available information to date, the Home Office has assessed the risks of impact on protected characteristics under the Equalities Act 2010, discrimination, and impact on relations between Core Participants, of a decision whether to appoint panel members to the Inquiry at this time.

Relevant Protected Characteristics

The Home Office recognises that some individuals and communities may be disproportionately affected by decisions on the composition of the Inquiry on the grounds of:

Race/sex/belief:

Core Participants sharing one or more of these protected characteristics may include:

individuals and groups who were targeted in undercover deployments and potentially subject to discrimination or harassment on the grounds of gender, race or political/social belief; and

individuals with whom undercover officers who are Core Participants to the Inquiry had intimate or other relationships without being aware of their real identity.

Age:

Core participants who share this protected characteristic will be elderly NSNPCPs and undercover officers who may be anxious due to their health or otherwise, that the Inquiry proceed as quickly as possible to achieve its objectives.

Disability:

…

Gender reassignment, pregnancy and maternity, religion or sexual orientation:

Although there is insufficient information available to determine whether these protected characteristics are engaged, it would appear reasonable to assess the risks of impact as being similar to the protected characteristics known to be engaged on the basis of NSNPCPs:

…

Particular concerns about the prolonged duration of the Inquiry (beyond 2018) in relation to age and health, and confidence in the outcome of the Inquiry.

Impact on protected characteristics

Disproportionate impact on protected characteristics – key considerations:

The UCPI was established to be led by a single Chair, who is a retired judge with experience in criminal justice. It is independent from the Home Office.

The purpose of the UCPI is to uncover the truths on deployments which may have wrongly targeted NSNPCP individuals and groups as soon as possible. This is to learn lessons and increase public confidence in undercover policing.

The UCPI Terms of Reference are intentionally broad for the Inquiry to cover a wide range of different undercover deployments, and investigate their motives and oversight. This is with a view to identifying failings, and where necessary, refer cases of potential miscarriages of justice to a panel independent from the Inquiry.

There are over 200 core participants, including circa 190 NSNPCPs. It would be difficult to assess the impact of the 'no change' option (not to appoint a UCPI panel other than the Chair at this time) as being disproportionate on certain core participants in relation to each protected characteristic.

On the contrary, a decision to appoint a UCPI panel would likely introduce delays in the Inquiry at this time. This could create or increase tensions between core participants with different or conflicting interests in the Inquiry and could disproportionately affect individuals sharing one or more protected characteristic – in particular, individuals who are elderly and/or considered to be disabled due to an existing or evolving health condition, including mental health potentially attributed to the delay.

Remedial actions:

A decision to defer considerations on the need for any panel member(s) or assessor(s) allows the Inquiry to:

expedite its current programme of work, reducing the risk of a disproportionate impact from delays on some Core Participants and fostering good relations between them; and

enable further considerations on appointing a panel to be informed by the Inquiry's progress and Core Participants representations, including an assessment of impact on protected characteristics.

The new UCPI Chair has recognised NSNPCP concerns and committed to discover the truth in the most open manner possible."

63. Ms Kaufmann submits that the PSED is an ongoing duty and the failure to reconsider was unlawful in light of the new matters drawn to the Secretary of State's attention in the further representations made to him after 29 March 2018. Further she submits that there is no indication that the previous Secretary of State assessed the impact of maintaining the current composition of the panel on the matters to which she was required to have due regard under s.149; rather, she started from the opposite end and asked what the risks are if the panel were to be expanded. In any event the principal negative impact that the Secretary of State identified as arising from the appointment of additional panel members is delay, and for the reasons already given (see para 55 above) the Claimants do not accept that the appointment of additional panel members would necessarily result in delay overall. Even if it did, the largest group of CPs has expressed its support for additional panel members, and the second-largest group is neutral, and no CP has sought to oppose the present claim.
64. I agree with Ms Dobbin that the decision which the Secretary of State had to assess the impact of was the effect of appointing a panel. She had regard to the Claimants' representations that a panel would improve diversity in the expertise of the panel, and that widening the panel would increase public confidence. However, in considering the impact of appointing panel members across a range of protected characteristics, which she was required to do, the Secretary of State was plainly entitled to consider whether delay was likely to result if additional panel members were appointed. In the context of an inquiry that originally was due to last three years and is now expected to last eight years she had to consider the consequences of a further extension to the Inquiry process and what impact it could have across the protected interests of the core participant groups as a whole. The Secretary of State concluded that delay would be damaging for the reason that it "could create or increase tensions between core participants with different or conflicting interests in the Inquiry and could disproportionately affect individuals sharing one or more protected characteristics" (see para 62 above).
65. In my view there is no merit in the contention that the Secretary of State failed to have proper regard to s.149 EA 2010 in relation to the PES of 14 February 2018 or the decision of 2 March 2018.
66. The PSED is, as Ms Kaufmann submits, a continuing duty. However I reject the submission that the Secretary of State failed in her duty by not conducting a further PSED exercise in the light of the representations made to her after the decision communicated on 2 March. There were, as I have said, no material developments after that decision which required a fresh decision or a fresh exercise of the PSED duty.

Conclusion

67. For the reasons I have given I do not consider any of the grounds of challenge advanced to be arguable. There were no material developments after the decision communicated by the letter of 2 March 2018 (and supplemented by the letter of 29 March 2018) which required the present Secretary of State to consider afresh the decision made by his predecessor. Accordingly, the application is refused.