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Mark Kennedy - Mark Stone la suite

Mark Kennedy's secret tapes: CPS launches wide-ranging inquiry

Judge to look into arrests of Ratcliffe-on-Soar environmental campaigners and undercover policeman's surveillance tapes

Mark Kennedy
Secret policeman Mark Kennedy. Sir Christopher Rose's inquiry will look into claims that surveillance tapes he recorded were suppressed. Photograph: Philipp Ebeling for the Guardian

A retired high court judge has been appointed to lead an expanded inquiry into claims that prosecutors suppressed secret surveillance tapes recorded by the undercover police officer Mark Kennedy in the trial of six environmental activists.

Sir Christopher Rose, who sat in the court of appeal until 2006, will head the independent inquiry set up by the director of public prosecutions, Keir Starmer QC, who acknowledged "growing concerns" over the claims.

Rose, as Chief Surveillance Commissioner, has been responsible for scrutinising the surveillance activities of the police and other official bodies for five years.

He will examine allegations that the Crown Prosecution Service (CPS), the agency headed by Starmer, misled the courts when it decided to abandon the prosecution of six activists accused of conspiring to invade one of Britain's biggest power stations.

The CPS had told a court in January that it was dropping the prosecution because "previously unavailable information" – the tapes recorded by Kennedy – which undermined its case had come to light.

However, documents obtained by the Guardian indicated the tapes had been with the CPS for more than a year.

When Starmer announced Rose's appointment on Wednesday, it became clear that the DPP had widened the inquiry since he first said last month that he was going to commission it.

Now it will also delve into why only 26 of the 114 activists who were initially arrested over the alleged plot to break into the power station were charged.

The activists have raised suspicions that the small number charged were picked out unfairly or for political reasons. Two years ago, the activists had been arrested in a school by Nottinghamshire police to prevent the occupation of the Ratcliffe-on-Soar power station a few hours later.

Kennedy, who infiltrated environmental groups for seven years, recorded the activists' meetings on a Casio watch. The former spy, who offered to help the activists in their defence, has said the tapes would have cleared them.The expansion of Rose's inquiry comes after Kennedy offered to pass on information about the "important" question of why only some of the activists were charged.

Rose's inquiry will run in tandem with another investigation. The Independent Police Complaints Commission has been examining the "alleged failure of Nottinghamshire police" to disclose evidence to the CPS in the same case.

In all, eight official inquiries have been established this year in the wake of revelations about the infiltration of protest groups by Kennedy and other undercover police officers.

Starmer said: "Sir Christopher will have full access to all the available evidence and will examine the issues with the utmost thoroughness. Inevitably this will take time but will be completed as soon as is practicable." His report will be made public.



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

Mark kennedy
Undercover police officer Mark Kennedy was 'involved in activities that went much further than the authorisation he was given', the appeal court judges ruled

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

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

The judges, who included the lord chief justice, said "elementary principles" of the fair trial process were ignored when prosecutors did not disclose evidence about Kennedy's work to activists' lawyers.

The court announced on Tuesday that it would quash the convictions of the activists, who were wrongly accused of conspiring to break into Ratcliffe-on-Soar power station in 2009.

The judgment also made several criticisms of Kennedy, including that his deployment could have been construed as "entrapment". It revealed Kennedy was part of a long-term programme "to infiltrate extreme leftwing groups" in the UK. Other court documents say the spy programme was called Operation Pegasus.

Kennedy, who has expressed remorse for the seven years he lived deep undercover in the environmental movement, responded by saying in a statement issued by his publicist, Max Clifford: "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."

But it will now be for senior police officers to explain why Kennedy, one of a network of police spies planted in protest groups, may have incited protesters to commit criminal acts they were later prosecuted for.

Among those who will be asked questions is Sir Hugh Orde, president of the Association of Chief Police Officers (Acpo), which was responsible for the shadowy unit to which Kennedy was seconded.

The national public order intelligence unit was later transferred to the Metropolitan police, under the command of the assistant commissioner John Yates, who resigned this week.

Orde is being tipped as a replacement Met commissioner. So too is Bernard Hogan-Howe, the top-ranking officer conducting an official inquiry into the Kennedy affair for Her Majesty's Inspectorate of Constabulary.

ACPO said in a statement: "The law is quite clear that undercover officers are absolutely prohibited from inducing people to commit offences they wouldn't otherwise commit. We are hopeful that the reviews into these events will make recommendations that will perhaps bring further robust governance, accountability and intrusive management into undercover policing, while preserving the value of the tactic to keeping communities safe."

All senior officers involved in the controversy will be alarmed at the mounting evidence that Kennedy went "rogue", developing genuine sympathies for the cause advocated by the suspected extremists he had been asked to monitor.

Known as Mark Stone to the activists he was sent to monitor – and UCO 133 to his police handlers – Kennedy put his concerns about his deployment on record.

"The middle class youths who are getting involved with protest linked to climate change are not politicised, they are concerned about the future of the planet not political issues," he wrote in one report to his handler.

Activists might be amused that he saw their cause as apolitical, but his interpretation of their motives would nonetheless have assisted them in court.

So too would the recordings he secretly made of activists when they gathered at a meeting before the planned protest.

A raid of that meeting by Nottinghamshire police ensured the protest at the power station never took place, and 113 people were arrested.

Of those, 26 were charged for conspiring to break into the facility, but Kennedy's evidence, which also included a signed police statement in which he offered a measure of "support for the defence", was withheld from their lawyers.

As a result, the trial of six activists was abandoned in January. The convictions of the other 20 campaigners, found guilty in December, were quashed on Tuesday for the same reason.

The judges made clear that Kennedy's surveillance tapes would have supported the defendants' argument at trial that they intended to avert greater harm from carbon emissions from the power station.

"It is a case which has given rise to a great deal of justifiable public disquiet, which we share. Something went seriously wrong with the trial," the judgment said. "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."

The Crown Prosecution Service's alleged failure to disclose Kennedy's evidence is now the subject of an independent inquiry by Sir Christopher Rose, a retired court of appeal judge.

But the judgment raises more questions about the operation to plant Kennedy and other undercover police officers in the protest movement.

The files of undisclosed evidence, the judges said, reveal 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".

There remain questions over his legal authority to spy on activists. Kennedy was not authorised to take part in the occupation of the power station until 9 April, just three days before the planned protest.

His surveillance of the activists also exceeded his powers, according to the judgment.

"When the protesters started to congregate together just before the proposed occupation it appears that Kennedy went much further than his authorisation.

"That included undertaking reconnaissance, participating in briefings, checking the surrounding area for police activity and agreeing to take part in a team of climbers."

The judges agreed that Kennedy was arguably seen by younger activists as an "eminence grise" – influential decision-maker – in the group.

The judgment added that Kennedy played a "significant role in assisting, advising and supporting ... the very activity for which the appellants were prosecuted".

That finding could prove damaging for senior police responsible for the surveillance operation.

Vera Baird, the former solicitor-general, said: "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.

"They were then left with him having let them down and with evidence showing that there was no crime in the first place."

Which police officer will take responsibility for the crisis in undercover policing?

Sir Hugh Orde. Bernad Hogan-Howe. Some of the top candidates for the most senior job in British policing could still be tainted by the controversy over Mark Kennedy and undercover policing.

Sir Hugh Orde
Sir Hugh Orde President of ACPO. Photograph: David Levene for the Guardian

Who will ultimately be made to carry the can over the Mark Kennedy and undercover policing fiasco? With a vacancy at the top of the Metropolitan Police this could turn out to be an intriguing question.

We know that Kennedy and the other police spies were seconded to the National Public Order Intelligence Unit. This was the responsibility of the Association of Chief Police Officers (ACPO) which, as has been said a thousand times before, has massive accountability problem.

When the controversy broke in January, ACPO's president, Sir Hugh Orde, was quick to stand-up and call for reform. He has been doing that for a while now.

Orde was also instrumental in seeking to deflect attention from police, using a speech to point to the (considerable) amount of unregulated surveillance that goes on in the private sector.

But as the anarchist Tweeter @piombo pointed out today, Orde had not taken the ACPO job when the operation to spy on Ratcliffe protesters went so badly wrong — he was in charge of policing in Northern Ireland. Note who retweeted that message.

We're entering interesting waters in the world of senior cops, and a handful will by vying for the top job vacated by Met commissioner Sir Paul Stephenson.

When the damning Court of Appeal judgment into the Ratcliffe case was revealed on Wednesdat, those close to Orde were quick to argue privately that this has little to do with him — or ACPO.

True, the NPOIU was moved over to the Met earlier this year in a bid to make this murky surveillance project more accountable. Ironic, then, that it was put under the command of none other than Yates of the Yard.

But the intrigue gets deeper. Another contender for Met commissioner is Bernard Hogan-Howe, who has been drafted in to bolster the Met in its moment of crisis.

As it turns out, Hogan-Howe, formerly a chief constable of Merseyside Police, is also conducting the major review into ACPO's surveillance operation, which we expect to be published over the summer.

Orde and Hogan-Howe would have to see off Sara Thornton, who has nothing to do with spying on protesters, and actually did a very good job ripping to shreds an attempt by West Midlands Police to monitor Muslim areas of Birmingham.

It is often the case that senior officers adeptly use the "bad apple" excuse whenever anything goes wrong — cutting loose expendable rank and file officers rather than admit to systemmatic failings. Kennedy is surely expecting that treatment.

Another senior officer, Jon Murphy, the ACPO lead for serious and organised crime, implied Kennedy's actions would never have been sanctioned.

If any of his bosses could arguably be fingered for responsibility for his deployment it is assistant chief constable Anton Setchell, formerly ACPO's national coordinator for "domestic extremism".

It's unlikely he will face the music either. Setchell retired at the end of last year, just a few months after Kennedy was outed on Inydmedia.

It is Setchell's unfortunate successor, the (comparatively) lowly detective chief superintendent Adrian Tudway, who had to manage with the fallout from the scandal in undercover policing. He may be called on to explain the controversy in the future.

Op-Ed: Court of Appeal quashes 'Mark Kennedy' convictions

The tide could be turning for the police and other organs of state security who incite crimes in order to discredit political ideologies and their activists, in Britain at least.
The world and especially the Internet is awash with lunatic so-called conspiracy theories, which are in reality for the most part simply scurrilous and unsubstantiated gossip about how the CIA rather than Oswald assassinated the President, how the White House rather than eighteen angry young men with boxcutters perpetrated 9/11, and how Dr David Kelly was murdered by MI5 rather than driven to suicide by a media frenzy, public humiliation and disgrace. Occasionally though, a real life story of subversion and intrigue does come to light when someone lifts up a rock and something nasty crawls out from underneath. Undercover police officer Mark Kennedy was one of these nasty creatures; for seven years he posed as an eco-activist creating a new identity complete with fake official documents and a fake – or should that be genuine-fake? – passport. If you or I had a fake passport in our possession we’d be off to clink in an instant. When one of the state’s organs has one though, it is issued by the Royal Prerogative, and none of your business, pal. This is of course not a new development, and to some extent the police and more importantly the shadowy intelligence agencies have to cross the line on occasion. The men convicted of organising the Heathrow bomb plot which was said to have been bigger than 9/11 had to be given enough rope; they were kept under close surveillance, and the authorities did not make their move until they felt they had sufficient evidence to obtain convictions. It would though have been a different matter for an undercover agent to join a conspiracy of this nature and edge others on. And it would be an entirely different matter yet again for an agent provocateur to recruit fanatics or people of poor character and low intelligence for the express purpose of inciting them to commit acts of terror so that they could be exposed, and sent to gaol for decades, as happened in the United States recently. There is no suggestion that Mark Kennedy came anywhere near doing anything of that nature, but he did participate in peaceful though unlawful activity directed against private property, and we have only his word for it that he was not responsible for initiating or attempting to initiate anything more serious. To his credit though, he appears to have either seen the light or been converted to some degree to the cause he had been sent to monitor or even subvert. There can be no doubt that the vast majority of the eco-warriors with whom he rubbed shoulders for years have their hearts in the right place, and the fact that he may have in some sense acted as an agent provocateur is undoubtedly one of the reasons why earlier this week, the Court of Appeal quashed the convictions of a number of activists for conspiring to break into the Ratcliffe-on-Soar power station two years ago. The fact that the Director of Public Prosecutions himself had urged them to appeal may also have had something to do with it. In spite of scathing criticism directed at the police, no one has really been brought to book; the only way to put a stop to this sort of nonsense is to hold people personally accountable; that means police officers who act illegally must be prosecuted in the criminal courts, not simply found liable in tort and their fines paid by their employer – ie the taxpayer – as happens inevitably in cases of police brutality, unlawful arrest and seizures etc, in the rare cases where the victim can obtain Legal Aid to bring a prosecution or has sufficient means to mount one himself. It is probably too much to ask that this will happen at any time in the near future, but there is another consideration here. Earlier this week it was announced that in this new age of austerity, Essex Police are to lose up to four hundred frontline officers over the next three years. Similar cuts are being imposed on all Britain’s local police forces. The police have more important things to do than play games subverting bona fide if feisty pressure groups, like patrolling the streets, and tracking down serial killers, as in the current Stockport hospital investigation.

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