Neither Confirm Nor Deny (NCND) was a principle of response adopted by the police when it came to various secret operations and sensitive tactics, including those involving undercover operations. It was argued that merely giving an indication that such a sensitive tactic was being used undermined its effectiveness or presented a security risk.
Thus, even to admit that something was happening was problematic from their perspective. Conversely, to maintain its effectiveness as a strategy they also felt unable to say that something was not happening.
The policy of NCND was used widely in the early days of the spycop scandal to avoid commenting on the emerging body of problems with undercover policing.
The police also argued that as they had to abide by their self-imposed policy of NCND, the consequence was they could not properly defend themselves so it put themselves at an unfair disadvantage; and to breach it would not be in the ‘public interest’.
This included court cases such as the one taken by eight women who had been deceived into relationships. As such, it came under heavy criticism as a tactic which permitted the police to avoid accountability and obstruct justice; in particular, it was denied it had the force and consistency of use that the police (particularly the Metropolitan Police) claimed and was only adopted as a principle late in the process when it was convenient.
The police also initially sought to rely on it in the Undercover Policing Inquiry (UCPI) - something which critics pointed out would have ensured an effectively secret process. This led to it being explicitly considered by the then Inquiry Chair, Sir Christopher Pitchford, as to whether it should play a role in his considerations, particularly when it came to anonymity for undercovers.
It was addressed as part of the UCPI’s third procedural hearing of March 2016 on the Restriction Order Approach when the various parties made submissions in relation to it (see under that hearing for relevant material). In particular, a witness statement was provided by Paddy McGuiness, a Deputy National Security Advisor at the Home Office, about its use within a national security context. Helen Steel's analysis showing there was no such blanket policy consistently applied was considered a pivotal moment in the arguments.
Sir Christopher Pitchford provided a lengthy overview of the NCND principle at paragraphs 113 to 146 of his ruling on Restriction Order Approaches. Ultimately his position (as set out in a UCPI press release on the matter) was:
The Ruling states that there will be no blanket solution in respect of restriction orders and that that the practice of ‘neither confirm nor deny’ will not, by itself, be a reason to make a restriction order, although it may be a consideration as part of the balancing act the Chairman will undertake when applying the legal principles and in weighing up competing public interests.
His actual ruling (para. A.7) on NCND is:
In assessing whether a risk of harm to an individual or damage to effective policing would be avoided or reduced by making a restriction order under section 19(3)(b) of the Inquiries Act 2005, reliance on the policy neither to confirm nor deny a fact or state of affairs will be a material consideration but the weight, if any, to be afforded to it will depend upon the precise risk of harm or damage its application seeks to avoid or reduce.
Pitchford then set out how he would assess such claims of risk of harm or damage.
- For further detail on the background and legal arguments see under Procedural Hearing 3: Restriction Order Approach.
Pitchford’s successor as Chair, Sir John Mitting, confirmed his commitment to Pitchford's position on the issue of NCND during the hearing of 20 November 2017:
I know he conducted a thorough analysis of Neither Confirm Nor Deny and concluded that it might have some weight in some instances. But the reality is that Neither Confirm Nor Deny has no part at all to play in Special Demonstration Squad deployments, where they are to be dealt with publicly they are confirmed, where they are to be dealt with entirely in closed, and there will be some, they will not be confirmed. Neither Confirm Nor Deny in those circumstances is a pointless exercise.