We were asked to post on the topic of undercover police officers using identities of dead children. Here are some of our very preliminary thoughts on the topic. We’d be interested to hear your thoughts on whether any offences have been committed.
The story of the undercover police officers who used (stole) the identities of dead children in order to create a false identity to infiltrate various protest groups came out over the weekend. It is likely to run and run (and if past experience is anything to go by, there will probably be further revelations before it has run it’s course).
It does raise the question of what, if anything, the police have done wrong?
My name is …
Unlike in Iceland (and many other countries) there is no restriction on what names can be used. There is no Act of Parliament that prevents me from calling myself whatever I want.
I can, if I fancy, call myself David Cameron and use that for all purposes. Jack Straw, for example, is actually called ‘John’ as his legal first name, he just always calls himself Jack. No problem with that.
We’ve all heard of changing a name by ‘deed poll’ – what’s that mean? There’s no Act of Parliament that sets out what someone’s legal name is, and a way of changing it. There is a good leaflet from the Court Service which explains it well. The actual form is here.
So, if I want to legally call myself Chris Grayling, that is fine. I couldn’t use it to imply that I was that Chris Grayling and pick up his pay cheque – that would be an offence under the Fraud Act. But here there is no suggestion that the police officers were trying to gain any financial benefit from taking someone else’s identity, they were just looking for a cover.
Taking on someone else’s identity
Here, the police officers did not just use someone’s name, they took their identity. At the time, this would have been covered by the Forgery and Counterfeiting Act 1981.The relevant offence would be under s5 “It is an offence for a person to have in his custody or under his control an instrument to which this section applies which is, and which he knows or believes to be, false, with the intention that he or another shall use it to induce somebody to accept it as genuine, and by reason of so accepting it to do or not to do some act to his own or any other person’s prejudice.”
What does this mean? The birth certificate (and passport that was obtained through this) are both instruments under s5(5). They will be ‘false‘. There is no defence of ‘reasonable excuse’. Subject to any question of whether there is a general defence available, this would appear to have been committed. This is subject to the caveat that it is not entirely clear how the officers obtained the relevant birth certificates.
Other offences that could be considered (again, it would depend exactly what happened) is an offence under s4 Perjury Act 1911 (‘False statements, &c. as to births or deaths’). Anyone can get a copy of another person’s birth certificate, it is passing it off as your own that is the problem.
Misconduct in a public office
To the lay person, this sounds like the correct offence – after all, lying to people and using a false identity to worm your way into someone’s life sounds pretty objectionable?
We’ve looked at what constitutes this offence previously. In determining whether the offence is made out, one question to be asked is whether “there [was] a serious departure from proper standards … and a departure not merely negligent but amounting to an affront to the standing of the public office held. The threshold is a high one requiring conduct so far below acceptable standards as to amount to an abuse of the public’s trust in the office holder“.
Most people would agree that that is covered by what happened here. The difficulty is that the misconduct offence is designed to prosecute officers who go off ‘on a frolic of their own’ and here it appears to have been authorised by the powers that be.
L’etat, c’est moi
Nixon famously said “If the president does it, that means it’s not illegal”. Does that apply here? Who can authorise what would otherwise be a criminal offence? This is a complicated area and the answer is surprisingly unclear.
For obvious reasons, police are allowed to break the law in certain circumstances – drugs test purchasing would be one example. But who authorises it? And what offence can be authorised?
It is worth looking at the Ratcliffe-on-Sea Power Station case. This involved the role played by Mark Kennedy, an undercover police officer.
One difficulty comes in the form of who to prosecute. Would it be right to prosecute individual officers who were following orders. Even if the answer is yes, there are more hurdles to overcome; is it in the public interest (probably not), if yes, is there a reasonable prospect of conviction (probably not, considering the difficulty in selecting an offence), is it proportionate, having regard to costs etc, (probably not).
Whatever happens in this case, it is extremely unlikely that there will be any prosecutions. Even if any of the above offences are made out, because the police officers were (it seems) authorised, it is likely that the CPS would conclude that it is not in the public interest to prosecute.
So why not go after the Met Police, or whomever ‘sanctioned’ this behaviour? Well there would be problems with the possession offences as by virtue of going after the organisation, one would be concerned with the behaviour as a whole as opposed to individual instances – so that counts the Forgery and Counterfeiting Act 1981 offence out. Misconduct in public office is a possibility, but again, there are problems with proportionality and public interest. It is unlikely there will be any prosecutions in this case.