Dil & Ors v Commissioner of Police of the Metropolis

A neither-confirm-nor-deny policy is not an automatic immunity from civil pleading or disclosure. The court must balance the strong public interest in protecting informers and undercover officers against competing public interests. The policy may be maintained after self-disclosure where confirmation or denial could endanger others, hamper investigations, assist criminals or reveal operational methods. It cannot, however, protect a past and arguably illegitimate policing tactic where no continuing operational interest is identified. A defendant relying on the policy must still comply with the rules governing the contents of a defence.

Five claimants brought claims in deceit, assault, misfeasance in public office and negligence arising from alleged long-term intimate relationships with men whom they said were undercover Metropolitan Police officers. The Commissioner’s defence adopted a neither-confirm-nor-deny position concerning the officers’ identities and the alleged relationships.

The Commissioner initially sought to strike out the claims, relying on [2001] 1 WLR 1786, but withdrew that application. The issue before the court was whether the Commissioner could rely on NCND to avoid answering the general allegation that such relationships were used as an undercover tactic, and the individual allegations concerning four alleged officers.

1. Applicable approach. The court derived guidance from the authorities that there is a very strong public interest in protecting the anonymity of informers and undercover officers, but the court must balance that interest against competing public interests. The criminal-trial exception, requiring disclosure where necessary to avoid a miscarriage of justice, did not arise.
2. Self-disclosure. Self-disclosure does not necessarily prevent reliance on NCND. Confirmation or denial may still endanger other people, hamper investigations, assist criminals or reveal operational methods. Official confirmation by the police, HMIC, a Minister or a court has greater significance than media reporting or individual self-disclosure.
3. General allegation. The Commissioner could not rely on NCND concerning the allegation that SDS officers had used long-term intimate sexual relationships with persons they were observing, or that senior management had authorised or acquiesced in that practice. The alleged conduct occurred before the SDS was disbanded, was not said to be continuing, and was not defended as an appropriate tactic. There was no legitimate public-interest basis for concealing an arguably illegitimate operational method used in the past.
4. Individual allegations. NCND was unavailable concerning “Jim Sutton”, whom the Commissioner had publicly named as an undercover officer, and “Bob Robinson”, who had self-disclosed and had been publicly identified by the IPCC as a former MPS officer. It remained available concerning “Mark Cassidy” and “John Barker”, who had not self-disclosed and had not been officially named, despite media reports.
5. The Commissioner was given 28 days to amend his defence. If he failed to plead to the general allegation or the allegations concerning Sutton and Robinson, those allegations would be taken as admitted under CPR 16.5(5). Disclosure was extended to 56 days. Striking out the defence or entering judgment immediately would have been disproportionate.

The judgment was a first-instance determination of an application concerning the contents of the defence and reliance on NCND. The judgment referred to earlier decisions in related litigation, but those decisions were not under appeal in this case.