So it was in late 2010 that 20 people were convicted of a protest without the court seeing the evidence supplied by activist Mark Stone, aka undercover cop Mark Kennedy. A further six protesters were later prosecuted and asked to see whatever reports Kennedy had made. Rather than release this, the Crown Prosecution Service (CPS) dropped the case.
At the time the CPS said they'd found
Previously unavailable information that significantly undermined the prosecution’s case
but they specifically said it was
not the existence of an undercover officer
Honest, guv. It was just coincidence that they only found this mysterious evidence, 21 months after the incident, within 48 hours of the defence's request for the Kennedy documents. When your job is to secure convictions, it must be tempting to withold evidence that exonerates.
The 20 previous convictions were quashed and it appears to be a formality that the Drax 29, who also had Kennedy take part, will get their convictions overturned too.
In just two protests the one officer secured 49 wrongful convictions. With 150 officers serving in the counter-democratic squads since their formation in 1968, taking Kennedy as an average there will have been over 7,000 miscarriages of justice. Even one per officer per year would give us 600.
So even being conservative, it's clear that poking its head above the water is one of the largest abuses of the judicial system ever revealed. How deep does it go? Let's ask the only people who know, the police and the Crown Prosecution Service. Except they won't tell us.
After Ratcliffe, Director of Public Prosecutions Keir Starmer said the CPS were actively reviewing files to find more. That was more than 18 months ago and they have so far found zero. It took them a year after the Ratcliffe ruling to say anything about the Drax convictions, even though Kennedy was involved in both.
ROSE RISES TO PROTECT THE GUILTY
In that intervening year we got the Rose report. Sir Christopher Rose was commissioned to investigate why police and prosecutors hadn't noticed that Kennedy and his evidence existed. Rose had been a Surveillance Commissioner since 2006. They have the ultimate sign-off on deployment of undercover police. Like all the inquiries that aren't actual police, it was a police satellite body with a conflict of interest and it amounted to yet another self-investigation.
The result was predictably intelligence-insulting blah - mistakes were made, nothing underhand, lessons learned now, nobody in charge did anything wrong, one scapegoated underling hung out to dry, move along, nothing to see.
Ratcliffe defence lawyer Mike Schwarz appeared Channel 4 News, talking of the report's drive to
hide behind the most benevolent interpretation of a completely myopic examination of one tiny issue. It's a failure of the authorities to address the wider picture, an almost pathological refusal to accept that there are systemic failures here.
Jon Snow then asked the Director of Public Prosecutions, Kier Starmer,
you see no requirement to mount a wider inquiry to check that there haven't been other miscarriages of justice?
To which Starmer replied
Whenever people raise concerns with me I will always look at those cases.... I think it would be a better use of our time and resources to look when an issue is raised rather than look back at everything when Sir Christopher Rose has said there's no systemic problem.
If I get burgled and find a fingerprint I don't expect the authorities to refuse to investigate until I give them a name to go with the fingerprint. It's they who have the files that match the two. In the same way, it's they who know who the undercover officers were, it's they who know which campaigns have been infiltrated. How can I ask for my conviction to be reviewed when I don't know that one of my friends was a cop who filed evidence that exonerates me?
On Newsnight, Jeremy Paxman started by asking Starmer
Are you absolutely certain there are no other cases in which people have been convicted on the basis of the evidence of undisclosed undercover police officers?
Paxman has to repeat the question three times in the folling minute and a half of shifty flanneling and he still doesn't get an answer. (It's interesting to note Starmer saying there are about half a dozen of these big cases involving undercovers annually.)
Starmer told Channel 4 the Ratcliffe debacle
has to be seen as a watershed in the way cases involving undercover officers are dealt with.
Well he certainly tried to make it seem that way, by making it hard for him or Rose's whitewash report to be challenged. Once a report is written, it takes a while to sort out the layout and printing. Yet the media were only told about the release of the Rose report the night before. They turned up at 9am and were given half an hour to read the 44 pages of unnecessarily tangled legalese and unexplained acronyms before Kier Starmer appeared for a few minutes to take questions and sod off.
Far be it from me to suggest that the CPS worked with the police to create another stitch-up to maintain their authority against the interests of justice, but if I wanted to discourage the press from being able to digest a report and ask probing questions, I would organise a report's release like that. If Starmer wasn't a willing part of such an ambush then he is, to put it most generously, too dim or powerless to do anything about the fact that it was set up like one.
The Rose report was a whitewash in both how it was compiled and in the conclusions it drew from its own limited evidence.
Starmer told Channel 4 that the police should have shared what the undercover officer was doing with the CPS and if that had been the case that
the individual failings both by us and by the police I don't think would have happened.
One problem there, Kier. The police did share it with the CPS. In fact, the CPS knew about the activists' plan before many of the participants themselves.
ONE BAD APPLE, UNDER A PILE OF BAD APPLES
The Rose report essentially says nobody in the CPS realised that the police files included Kennedy's stuff or how important it was. It scapegoats one low ranking official, Ian Cunningham. One bad apple, you know, like they told us Mark Kennedy himself was.
The thing is that Cunningham's superior, Nick Paul, was more in the know than anyone. There are emails between the two men talking of the 'sensitive disclosure issues' around the 'participating informant'. Paul overrides the wishes of police to protect Kennedy. Nick Paul was at the time - and until January 2010 - the Domestic Extremism Co-ordinator in the CPS Special Crime Unit.
So the nebulous idea of 'domestic extremism' isn't just used by the secret police - the CPS concur with it enough to use it in a job title. Even though nobody is sure what it means. How long has the CPS had such a role? What else have they dealt with?
If Keir Starmer was interested in justice and wanted a place to start reviewing cases that may well be dodgy, it would be those dealt with by the the Domestic Extremism Co-ordinator. If Sir Christopher Rose wanted to get to the truth of what happened at Ratcliffe, he should have made Nick Paul swear an affa davit. As it is, he didn't even talk to him at all. Odd behaviour for an inquirer, unless he was trying to create a whitewash. Kier Starmer told Newsnight that Mike Schwarz was wrong, that Rose had looked at 'the entirety of the materials, police and prosecutors,' which is simply not true.
Let's look at what the Rose report into police and CPS collusion at Ratcliffe actually tells us when cross-referenced with the Independent Police Complaints Commission's report into the same issue. Bear with me, it'll be a bit long and a tad forensic, but it shows that this was not one lowling's fault. This was a high-level police and CPS cover-up.
6 April 2009: Ian Cunningham says he "was contacted by DCI Severn and told that there was a police operation to counter a threat to close down a power station in the region. He understood that the police were acting on intelligence and was informed that Nick Paul already had an overview of the case. He contacted Mr Paul and they confirmed that Mr Cunningham would be the allocated lawyer for Nottinghamshire Police to contact". (IPCC, para 77, my italics).
Note that Nick Paul already knew. When was he first told?
12 April 2009: 114 climate activists (including deep undercover police officer Mark Kennedy) arrested in the largest pre-emptive political arrest of its kind in English history.
16 April 2009: Police Gold Group meet, and their notes open with their mistrust of Cunningham: 'Ian Cunningham, danger environmentally friendly - local CPS reticent' (Rose, para 19). Rose found no evidence to support this. But here we have, right at the outset, a suspicion from the more judgemental officials. You can see a suggestion as to why, when a scapegoat was needed, Cunningham was sacrificed.
27 April 2009: Cunningham said he attended a Gold Group meeting with several senior police and was shown a single piece of paper about Kennedy's involvement and his authorisation. There was no detailed file. (IPCC, para 79). Nick Paul was present (Rose, para 21). Cunningham emails the Senior Investigating Officer the same day saying "we will always be vulnerable on disclosure, especially matters covert" (Rose, para 21). So the SIO knew about disclosure problems already - this isn't Cunningham keeping it to himself, then.
15 May 2009: Another Gold Group meeting takes place. Cunningham says they discussed the use of Kennedy and agree "to have a further meeting with Mr Paul and others who were sighted on the case to discuss what the implications were regarding the use of" Kennedy (IPCC, para 82, my italics). Following the meeting, the Senior Investigating Officer records in his Sensitive File “I believe that the major impact of the UC [undercover] de-brief is that the main organisers of the event are not amongst the scope of the investigation and a high level CPS/police strategy needs to be agreed to shape the future of the investigation” (Rose, para 21: my italics).
This Sensitive File note is more credible than much of the testimony to Rose as it is one of the few contemporaneous notes used, before everyone knew they had to cover their arses by blaming each other. Cunningham would not fit anyone's definition of 'high level CPS,' so this clearly means it was erroneous to mostly blame him. But who from the CPS or elsewhere - 'others sighted on the case' - did actually form the strategy? Nick Paul? Higher still?
28 May 2009: The CPS' Case Management Review Panel meets. Cunningham and at least two lawyers senior to him are present. Cunningham says if a prosecution goes ahead there are likely to be many disclosure issues. (Rose, para 39). Who were the more senior lawyers? They are responsible for any cover-up as well as Cunningham. Indeed, being senior makes them look more culpable.
16 June 2009: That planned police/CPS strategy meeting 'to shape the future of the investigation' takes place. (IPCC, para 82). Numerous senior police and Nick Paul are present (Rose, para 35).
17 June 2009: Nick Paul emails Cunningham saying, 'the participating informant may become important if the defence switch tack and choose to run a non political defence'. Cunningham replies that there are 'sensitive disclosure issues' and that he has a meeting the next week (23 June) to carry out the initial evidence sift. (IPCC, para 52).
Early July 2009: A Detective Chief Inspector (DCI) at the undercover police unit NPOIU wants Kennedy not to be charged. Nick Paul overrules it. (Rose, para 24). That's quite a stand to make; clearly Paul feels he has power to shape and control this.
23 July 2009: The DCI in Kennedy's unit emails Nick Paul to say once again that he doesn't want Kennedy charged, even though the CPS are pressing ahead with it. He also says that the secret police 'have not given the local CPS any details of the asset [Kennedy] but they are aware there is an asset involved'. (Rose, para 24). This not only shows Nick Paul knew what was going on and is pretty much calling the shots but that lower CPS, possibly including Cunningham, had information kept from them.
17 September 2009: The DCI running Kennedy's unit says that, following a meeting at Nottingham CPS between police, Cunningham and Paul on 15th (IPCC, para 54), Det Supt Pearson made an entry in his Sensitive Policy File. ‘Objective review of the evidence by CPS. In essence Stone UCO [undercover officer] was acting lawfully, within the scope of his authorised activity'. (IPCC, para 55)
30 November 2009: The CPS' Case Management Review Panel meets for the second time. Again, Cunningham and at least two lawyers senior to him are present. Cunningham asks what risks there were on the use of Kennedy's intelligence, pointing out that media had reported the police clearly acted on advance information. They discussed "risks regarding the 'right' questions being asked by the defence regarding covert practices". (Rose, para 39).
Again, who were the two senior lawyers? This looks very much like a conspiracy to keep the evidence from the defence and, again, the more senior CPS lawyers surely bear responsibility with Cunningham.
24 June 2010: The CPS' Case Management Review Panel meets for the third time. Again, Cunningham is there discussing the case with at least two more senior lawyers. Still the non-disclosure plan continues. (Rose, para 49).
13 October 2010: Prosecuting barrister in both Ratcliffe trials Felicity Gerry says she met with Cunningham and police at the CPS Complex Crime Unit offices in Nottingham where she was first informed of the existence of the undercover officer by Det Supt Pearson. (IPCC, para 65). So the person leading the prosecution knew, far ahead of formulating her arguments, and for every second she was in court, that evidence was being withheld from the defence.
21 October 2010: Mark Kennedy is exposed as an undercover police officer by activists. Cunningham informs Felicity Gerry the next day (IPCC, para 68).
22 November 2010: The first 20 of the Ratcliffe activists go on trial. Prosecutor Felicity Gerry - who self-defines as 'an entertaining public speaker and a prolific and popular tweeter' - baffled the jury and wider world by asking 'Was it more fun to plan this action or to vote for Zac Goldsmith? Did the defendants do all this because they didn’t have a Glastonbury ticket?' and suggesting it would have been more effective to get Cheryl Cole to speak out about climate change instead.
It seemed bizarre and clueless at the time, and was deservedly mocked. The Zac Goldsmith thing has a particularly hollow ring now we're three years into the betrayal of the 'greenest government ever'. But the serious part is that, knowing that she was aware of Kennedy, and by implication the withheld evidence and the miscarriage of justice she was enacting, from this distance her arguments take on a cynical and sinister tone.
14 December 2010: The 20 are found guilty.
10 January 2011: The trial of a further 6 collapses as the CPS refuse to disclose Kennedy's evidence that exonerated them. The CPS immediately begin their cover-up, issuing a statement saying it is not to do with Kennedy.
19 July 2011: The convictions of the 20 are quashed.
3 July 2012: A year later but with the scandal still expanding, the CPS invites another group of activists infiltrated by Kennedy, the Drax 29, to appeal their convictions. They are universally expected to be quashed.
WHAT THE REPORTS DIDN'T REPORT
Paragraphs 7-12 of the Rose report list all the materials drawn on. Nick Paul isn't mentioned. The man in the middle of it all, the first person in the CPS to know about Kennedy, who had the power to overrule some very insistent senior police officers, who conspired with Cunningham over 'sensitive disclosure issues', who held the post of Domestic Extremism Co-ordinator, wasn't even interviewed. Why not?
Who were the two senior lawyers on the Case Management Review Panel? Rose concludes they failed 'to sensibly oversee the way in which Mr Cunningham was doing his job as prosecutor' (Rose, para 46). How much did they advise? A mere oversight by two experienced lawyers in the entirety of three meetings over a year? Or were they active in withholding the evidence? Rose does not seem interested in asking. They are one of the main reasons disclosure didn't happen (Rose, para 54) yet they are never named and are seemingly not sanctioned.
In the Rose report's conclusions, despite the damning evidence even from its own limited pool, Rose declared, 'the failures were individual, not systemic'. (Rose, para 53). Yet the report shows the police are desperate to keep the existence of their undercover officers from everyone.
The IPCC concluded that
the dissemination of the sensitive material from the NPOIU [National Public Order Intelligence Unit; the secret police of which Kennedy was a part] through to the police is best described as ad hoc...The transcript should have been fully explained to Nottinghamshire Police with regard to its evidential value... There is no evidence that this conversation took place. (IPCC, para 110)
The secret police are, by definition, mixed up in loads of illegal activity and yet they don't disclose properly to the rest of the police (hence the uniformed grunts nicking Kennedy in the first place) never mind the CPS. If that doesn't fit your definition of 'systemic problem' you need a new dictionary. Even from the scant information in these reports, when you put them together the clear image is one of collusion and cover-up.
THERE'S A STARMER, WAITING IN THE SKY
The IPCC report was narrow but at least it interviewed the relevant cops. The CPS and Rose couldn't be bothered, or else didn't want to hear what might be said. Either way, nobody can pretend that the Rose report is authoritative. It didn't stop Keir Starmer trying, mind.
He rapidly took cover behind Rose's tanker of whitewash, using the pronouncement that there was 'no systemic failing' as a reason not to investigate and rectify the hundreds, quite possibly thousands, of miscarriages of justice that are waiting to be uncovered.
You'd have thought Starmer might have a personal lust for justice against this counter-democratic policing given that he's been fucked over by it more than once before. As a defence lawyer he worked for a group of hunt saboteurs who got a witness statement from one of their comrades called Jim Sutton, aka undercover officer Jim Boyling.
Later, Starmer advised the McLibel defendants after they were prosecuted for distributing a leaflet co-written by undercover officer Bob Lambert. Starmer's sagely wisdom will have been undermined due to being pre-empted - it was seen by John Dines, the live-in boyfriend of defendant Helen Steel, who was also an undercover police officer. But in his supine position before the counter-democratic, judiciary-nobbling secret police, Starmer appears to show that there are few as zealous as those who've converted.
Maybe that's too harsh. Maybe he's too dim to realise how he's been duped and puppeted. Or maybe he's too powerless to speak out, or even speak out about the fact that he can't speak out. Whichever, the Ratcliffe fiasco and his participation in the cover-up have seen his credibility as a figure of justice comprehensively shredded and flushed away.
He's leaving the post of Director of Public Prosecutions at the end of October. Still time to find some of those elusive files before he goes, if he has enough conscience, inclination and ability.
Nick Paul, meanwhile, has left the CPS and is now back working at the place he founded, Doughty Street Chambers. This is, somewhat incongruously, the same chambers that did the Ratcliffe defence, and where Keir Starmer worked before he was Director of Public Prosecutions.
His profile mentions his time at the CPS.
Whilst there he specialised in cases involving police misconduct.
Indeed he did.