Undercover Police Operations: How Far Can Police Go to Investigate Crime?

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The portrayal of undercover police operations in movies and on TV may leave audiences with the perception that they are thrilling, secretive operations – full of tension, action and drama.

But just how far can undercover police go to gain information or investigate a crime?

Mark Kennedy, a former officer attached to the National Public Order Intelligence Unit, spent seven years posing as an activist in order to infiltrate various environmental protest groups in London.

In his efforts to gain the trust of group members and mask his true identity, Kennedy assumed the persona of ‘Mark Stone’ and planned major protests, shut down power stations, hijacked a train and even engaged in sexual relationships with campaigners.

He was finally exposed as an undercover cop by his fellow group members in 2010.

However, by the time his true identity was discovered, Kennedy had resigned from the police force and fully assumed the role of his alter-ego, claiming that he had formed close friendships within the protest groups and had even fallen ‘deeply in love’ with an activist.

He even tried to sue the police, claiming up to £100,000 in personal loss and damages for their ‘failure to prevent him from falling in love.’

Kennedy claimed that his superiors within the police force were fully aware of his activities – including the fact that he had engaged in sexual intercourse with members of the groups – yet they did not intervene because they were so hungry for inside information.

Kennedy alleged that he suffered severe emotional trauma as a result, losing his job and family and suffering irreversible damage to his reputation. He was subsequently diagnosed with post-traumatic stress disorder.

But it wasn’t just Kennedy who suffered as a result of the scheme – ten women and a man later brought actions against the police, claiming that they suffered emotional harm.

Some have even accused Kennedy of sexual assault, claiming that the women with whom he had relations with were unable to give informed consent as they were unaware of his true identity.

But whilst extraordinary, Kennedy’s case is not isolated.

An inquiry into undercover police operations in Britain launched last year found that there have been numerous other incidents of undercover police operations ending in disaster – often after ethical boundaries have been crossed.

In some cases, undercover officers had formed close relationships and even fathered children in their attempts to infiltrate various groups.

Once their operations had concluded, the children – and their mothers – were effectively abandoned.

The inquiry also exposed the ways in which undercover operations may jeopardise the transparency of the court system, detailing at least 10 cases in which undercover officers gave evidence in court under their fake identities – without the knowledge of the court.

As a result of this evidence, it’s estimated that at least 56 protestors were wrongly prosecuted.

Undercover police were also found to have breached professional and ethical standards by spying on the family of murdered teenager Stephen Lawrence in an attempt to gather ‘dirt’ to be used against the family.

A Need for Tighter Regulation?

Whilst undercover operations are heavily regulated by the law, some argue that the above cases show a need for tighter regulation.

Though police must abide by professional standards and rules of disclosure in carrying out their operations, it appears that these regulations have been increasingly brushed aside in recent years.

The British inquiry into undercover policing found that the Special Demonstration Squad, which had conducted a number of covert operations, had ‘operated as if exempt from the proper rules of disclosure in criminal cases.’

This signifies a need for stricter codes of conduct and reporting requirements.

In Australia, covert operations are governed under the Law Enforcement (Controlled Operations) Act 1997.

The Act states that the chief executive officer of a law enforcement agency must give approval for a controlled operation to take place.

The process is heavily monitored by the Ombudsman, who must be notified of any approvals which have been granted. The Ombudsman then has the task of inspecting agency records each year to ensure that they are compliant.

The Ombudsman also publishes an annual report into the results of monitoring operations and may make special reports to Parliament if there are any concerns raised.

The Value of Undercover Operations

While the above cases illustrate the potential dangers to the community and courts when covert operations go wrong, there is no doubt that they can be instrumental in solving crimes and securing convictions against those who have committed serious offences.

For example, in 2011, Victorian police used covert operation tactics to solve the mysterious disappearance and murder of teenager Daniel Morcombe.

An undercover officer assumed the identity of ‘Fitzy,’ a crime boss who offered to assist Cowan in covering his tracks.

Under the belief that ‘Fitzy’ would help him erase his past once and for all, an unsuspecting Cowan confessed to the murder and took the officer to locations around the Sunshine Coast where he had killed Morcombe and disposed of his clothing.

Using evidence obtained from the undercover operation, police were able to secure a conviction against Morcombe’s killer, Brett Peter Cowan, last year.

Cowan was convicted of murder, interfering with a corpse and indecent treatment of a child and sentenced to life imprisonment, with a non-parole period of 20 years.

However, in November last year, Cowan announced that he would be appealing his conviction and sentence on the basis that his admission was involuntary.

Cowan’s defence lawyer argued that undercover police unfairly violated Cowan’s right to silence by ‘tricking’ him into confessing.

Under the law, evidence of an admission that is improperly obtained may be excluded by the courts.

Evidence may be improperly obtained where the person conducting the questioning makes a statement which they know to be false, and which they know is likely to cause the person being questioned to make an admission.

However, in deciding whether or not to admit improperly obtained evidence, courts can consider factors such as the weight and importance of that evidence, the seriousness of the offence, and the gravity of the impropriety.

Should Cowan succeed in his appeal, it will raise serious questions about the admissibility of any evidence obtained from covert operations – and indeed, whether undercover operations are feasible at all.

An appeal date is set for March of this year.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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