The Terms of Reference (ToR) of the Undercover Policing Inquiry (UCPI) were established by the Home Office on 16 July 2015, not long after the appointment of its first Chair, Sir Christopher Pitchford.
One of the reasons for the year delay in determining the ToR was due to the Home Office awaiting further reporting by Mark Ellison KC who, while conducting investigations for the Stephen Lawrence Independent Review, found evidence of undercover officers orchestrating miscarriages of justice, and was commissioned by the Home Office to specifically investigate.
The resulting report by Mark Ellison KC and Alison Morgan, Review of Possible Miscarriages of Justice, was published on 16 July 2015. The Home Office published the Inquiry's Terms of Reference on the same day.
The Terms of Reference is the fundamental founding document of the UCPI, setting out what it is supposed to investigate and report back on, and any limits it might have.
Purpose
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.
It is notable that the ToR simply refer to undercover policing as a whole, while the common understanding is that the focus is on the two main political units, the Special Demonstration Squad and National Public Order Intelligence Unit.
Scope
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.
The ToR requires that the Inquiry Chair provides a final report to the Home Office. They also give it the power to make referrals to a Miscarriages of Justice Panel where it considers that a miscarriage of justice has taken place.
While the ToR set out the broad objectives of the Inquiry’s investigation, in order to facilitate its work the Inquiry has broken the process into Modules and Tranches, which set out specific areas and eras of investigation. The finer detail of what questions the Inquiry asks of witnesses is set out in the Issue Lists.
As the Inquiries Act 2005 only applies to England and Wales, the Inquiry’s remit is limited to this jurisdiction. While it can take into consideration evidence which took place outside of this jurisdiction, it cannot actively investigate in relation to this, and nor is it able to compel witnesses who live outside England and Wales to give evidence. As a result, it is also unable to make specific findings on activities in other jurisdictions.
It has been a complaint of the non-state core participants that this effectively excludes Scotland and Northern Ireland despite the undercover units being active there for the entire duration of their existence, as well as in Europe and beyond. HN12 Mark Kennedy / 'Mark Stone' was a prolific traveller in this sense, having made at least 40 trips abroad to 11 different countries during his time undercover.
As a result they called for the UCPI's terms of reference to be extended to Scotland and Northern Ireland, and elsewhere, albeit unsuccessfully.
See also under Criticism (Jurisdiction).
Purpose
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
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.
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
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.
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.
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.
The inquiry will not examine undercover or covert operations conducted by any body other than an English or Welsh police force.
Method
The inquiry will examine and review all documents as the inquiry chairman shall judge appropriate.
The inquiry will receive such oral and written evidence as the inquiry chairman shall judge appropriate.
Report
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.