The previous analysis on who knew what sets the stage for two further parts: how the NPOIU fed into mainstream policing, and how that structure facilitated miscarriages of justice.

The NPOIU in mainstream policing

Though the material obtained through the disclosure and the official reports do not go into sufficient depth to be precise on matters, there is enough detail that some useful inferences can be drawn.

A notable but otherwise unremarked point is, how quickly and high up police ranks intelligence from Mark Kennedy went when it first emerged that activists were starting to plan a power station protest in October 2008. By the end of that month, the National Public Order Intelligence Unit (NPOIU) had brought Nottinghamshire Police on to the extent that Assistant Chief Constable Ian Ackerley was ready to sign an authorisation.

Mark Kennedy had been deployed in Nottingham for five years by this stage. So given there were doubtlessly previous operations where he would have required authorisation, it is likely he was known of by Ackerley, who had moved from Staffordshire to Nottinghamshire Police as an Assistant Chief Constable in September 2006. It is also probable that there were already well established links between Kennedy’s unit, the NPOIU, and local Special Branch whose heads included Stephen Lowe and Andy Bateman. These links would have gone back to the time of Kennedy’s predecessor, another NPOIU undercover under the name ‘Rod Richardson’, who was deployed in Nottingham from 2000 to 2003.

The evidence provided by the authorisation of April 2009 also indicates there was a well-established procedure in place. It shows the Nottinghamshire Special Branch were accustomed to dealing with this sort of work, and thus the implication is they were being generally kept in the loop.

The extent to how Kennedy’s intelligence passed up the police hierarchy is harder to determine. Central to this are the ‘Gold’ level meetings of 23 March and 7 April. It can be inferred it was at this top level that intelligence relating to the undercover work was discussed and policy set. Minutes of those meetings are as yet unavailable, so all that can be said is they were attended by Ackerley.

If the NPOIU were present it would demonstrate that their input into decision making was at the highest levels and thus in a position to shape policy. That the brief for the re-authorisation of Kennedy by Ackerley on 7 April was supported by a statement from the National Domestic Extremism Co-ordinator, Anton Setchell, indicating he was also kept aware of the situation.

This is substantiated by the distribution lists provided in the NPOIU intelligence forms which presented Kennedy’s intelligence. They include ‘ACPO Gold’, presumably Setchell, but also for Nottinghamshire Police there are references to the Head of Special Branch (as ‘HSB’), Andy Bateman, and the otherwise unidentified ‘Silver Cmdr Notts’, who would have been Ackerley’s deputy in overseeing Operation Aeroscope. It is thought, but not confirmed, that Silver was Det. Ch. Supt. Ian Waterfield, who was Director of Intelligence for Nottinghamshire and who had responsibility for RIPA authorisations of the kind that Mark Kennedy would have required.

In the emergency services, the Gold – Silver – Bronze command structure is used to give a clear line of command for an operation. Gold sets strategy, while Silver overseas tactics. Bronze’s role is operational, i.e. carrying out the actual work on the ground under guidance from Gold and Silver.

One intelligence report, that of 13 April, noted that on 11 April activists planned a reconnaissance of Ratcliffe-on-Soar power station. It states that Kennedy’s handler in the NPOIU, Det. Insp. David Hutcheson, had verbally briefed Bateman to pass the intelligence onto the Silver Commander. Another report notes that the NPOIU had also directly briefed Chief Superintendent John Busuttil, divisional commander for the area that covered Ratcliffe-on-Soar. It is thought, but not confirmed, that part of his responsibility was for the actual arrest operation.

Thus, the pre-arrest operation seems to be a small group of Nottinghamshire officers overseeing sensitive material, working closely with senior NPOIU managers who provide direct briefings.

This changes in the post-arrest phase, when officers involved in the day to day work of Aeroscope are replaced almost completely as it moves to become a major investigation. Initially, these new officers are kept ignorant of Kennedy’s role, a deliberate policy decision which must have originated with the Gold Commander, Ian Ackerley. It is only gradually that Kennedy’s central participation emerges, and only after that dissemination of information relating to it. At either Ackerley’s explicit decision or acquiescence, the dissemination is made the responsibility of an otherwise unnamed ‘NPOIU DCI’.

We believe this is Det. Ch. Insp. Nightingale of the NPOIU, who headed up the ‘Confidential Intelligence Unit’, the subdivision of the NPOIU which actually ran the undercovers such as Kennedy. Immediately below him is Kennedy’s cover officer, Det. Insp. David Hutcheson. Both men are named in the distribution lists for the Kennedy intelligence reports.

In the investigation stage, it is the NPOIU DCI who briefs the senior investigating officers relating to Kennedy and oversees passing on information to the Aeroscope investigating team. As such, the team are only following the policy decision of Ackerley in this. The IPCC castigates the investigation team for not being firmer on the role of the undercover while being strangely silent on the Assistant Chief Constable’s pre-eminent role.

Nevertheless, what emerges is a seemingly standard practice where, throughout investigations, the NPOIU are effectively in control of the intelligence coming out from their undercovers.

Miscarriages of Justice

It is now well established that for Special Branch units such as the NPOIU or Special Demonstration Squad, protection of undercover identities took high priority, something evidenced in the discussions around ‘protecting the source’ as appears in the Aeroscope related reports. Anecdotal evidence also indicates that police preferred to let cases collapse or go uninvestigated rather than allow undercovers give evidence in court.^[1]Michael Levi, Covert Policing and the Investigation of ‘Organized Fraud’: The English Experience in international Context, in C. J. C. F. Fijnaut & Gary Trade Marx (ed), Undercover: Police Surveillance in Comparative Perspective, Martinus Nijhoff Publishers, 1995. A more recent example directly applying to the Special Demonstration Squad was the role of undercover Christine Green in an animal rights raid on a Hampshire fur farm in 1998, which lead to Metropolitan Police apologising to Hampshire Police for not disclosing her presence. Rob Evans, Ex-police spy berates Met for revealing her role in mink release, The Guardian, 23 February 2018 (accessed 23 August 2018).

It is not hard to see how this sets up a situation which encourages suppression of evidence. This can be observed in practice when seemingly iron-clad cases suddenly and inexplicably collapsed. On the other hand, evidence could be in favour of or even exonerate defendants. In which case suppression of it amounts to a miscarriage of justice.

It is the latter that appears to have happened in the case of Operation Aeroscope. Taking at face value that the senior investigating officers were kept mostly in the dark about Kennedy’s identity, it is not hard to see how his alter ego, ‘Mark Stone’, would have been of particular interest to the police carrying out the investigation into the arrested campaigners. This is supported in part by Kennedy’s own admission in an interview that to the average Nottingham police officer he was only ever ‘Mark Stone’, a thorn in their side.^[2]Simon Hattenstone, Mark Kennedy: Confessions of an undercover cop, The Guardian, 26 March 2011 (accessed 28 August 2016). To maintain his cover from the Aeroscope team in general (as opposed to the few in on the secret) he could not be seen to get special treatment, so it is likely he was interviewed and re-interviewed to keep his cover intact.

Nevertheless, he is clearly a key person in the planning of the action, carrying out reconnaissance and as participants have told us, actively encouraging it to go ahead following the spotting of police cars at the power station, which potentially casts him as an agent provocateur. One of those at the meetings in the school the night of the arrests told us they recalled him saying during the discussions as to whether to go ahead, “We can do it, we can be there all week.”

Early on, attention is given to the possibility Kennedy might be arrested. A risk assessment relating to Kennedy’s involvement in the demonstration noted the possibility, saying if this happened, he would decline a solicitor and that his NPOIU controller David Hutcheson ‘will be regularly informed of the situation of UCO 133 [Kennedy] and in the event of their arrest will be immediately informed in order to liaise with Nottinghamshire Senior management and the Criminal Prosecution Service.'^[3]Intelligence reports relating to 2009 planned protest at Ratcliffe-on-Soar power station, National Public Order Intelligence Unit, 2009. Accessed via SpecialBranchFiles.uk. See page 4.

The role of agent provocateur is also seemingly recognised when in July 2009 Nick Paul of the CPS refused to accede to requests for charges against him to be dropped. (This is supported in Kennedy’s own account, when he speaks of waiting weeks to be told charges would be dropped). That Nick Paul thought there was sufficient evidence to have him charged with conspiracy is telling insofar as it points to Kennedy’s leading role in the planning for the action as being uncovered by the investigating officers. Something that Kennedy’s handlers must also have been aware of.

Rose in his report gives the following remarkable paragraph:

24. On 23 July 2009 an email from the DCI NPOIU to Nick Paul refers to having seen the Deputy SIO and the intelligence officer that day and said “the SIO or Deputy have not given the local CPS any details of the asset but they are aware there is an asset involved”. (Earlier in July 2009 Nick Paul had rejected the DCI NPOIU’s “tactical suggestion” that the UCO be removed from the charging pool). He went on “if the asset remains in the charging pool we will need to interject in some way to prevent charging”. This email is important because, as indicated in paragraph 22 above, it is inconsistent with the Deputy SIO’s recollection, because it illustrates the DCI NPOIU’s determination, throughout, to keep Kennedy “out of the frame” and because it shows, to put it no higher, a lack of urgency in supplying details of the UCO to the local CPS.

 

However, in mid-September, charges are finally dropped, demonstrating that the NPOIU had sufficient pull to make such an ‘interjection’. We address this more in the next section, but highlight here the line: DCI NPOIU’s determination, throughout, to keep Kennedy “out of the frame” and because it shows, to put it no higher, a lack of urgency in supplying details of the UCO to the local CPS. This more than anything is telling of the NPOIU approach – secrecy above all, even at the cost of a massive miscarriage of justice.

The timing is also curious as it comes at almost the exact time that he is told his deployment is being ended. At this point he has been deployed over six years, longer than average four to five years, and other sources point to his deployment being increasingly problematic from the police’s side.^[4]A review of national police units which provide intelligence on criminality associated with protest, HM Inspectorate of Constabulary, 2012. This report was followed up by several more from HMIC focusing on undercover policing in general. Nevertheless, one has to wonder if there was a connection between the two: was the price of charges being dropped that he was finally removed from the field having crossed over the line too far?

Returning to the process of how the NPOIU controlled information, it is now straightforward to see how they were able to undermine the full disclosure necessary to understand Kennedy’s particular role. The extent to which it was maintained as secret seems to have prevented a proper evaluation, and a policy set by Ackerley would have placed pressure to keep it secret.

With its own vested interests, the NPOIU could not be relied upon to point out if and when Kennedy’s may have crossed the line. If the NPOIU were forthcoming and open, then the Aeroscope investigators would have been complicit in the cover-up of Kennedy’s role. However, based on our reading the Sir Christopher Rose and IPCC reports, particularly around the importance of the five and a half page ‘health and safety briefing’ from Kennedy (the document labelled ‘130409Mark’), we are favouring the former. If anything, more fault can be placed at the IPCC for not properly interrogating the role of the NPOIU.

That there was a miscarriage of justice in this case was recognised by the then Director of Public Prosecutions, Keir Starmer, when he invited those who had been convicted to appeal their case. They successfully did this in July 2010 on the basis of the non-disclosure of Kennedy’s role.

In conclusion, and admitting this is based on indirect readings, the picture that emerges is of a process controlled by the NPOIU and very senior management at Nottinghamshire Police. It is a combination of two parts – policy decisions at Assistant Chief Constable level to protect such sources, and the NPOIU’s use of this to suppress or downplay certain material from their undercovers. In such a set-up, suppression of relevant material becomes possible, leading to miscarriages of justice.

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