The Director of Public Prosecutions, Keir Starmer QC, has invited 29 individuals convicted following the Drax Power Station protest in 2008 to appeal against their convictions. This protest involved the former undercover officer Mark Kennedy.
Mr Starmer has also asked the Metropolitan Police Service (MPS) to examine records of all operations involving Mark Kennedy that led to convictions.
He has also signed a Memorandum of Understanding with police and other investigative agencies that will ensure information about undercover officers is shared between investigators and prosecutors and disclosed to the defence when required in future cases.
Mr Starmer said:
“As a result of concerns raised with me about the convictions of 29 individuals for offences committed during a protest near Drax Power Station in North Yorkshire in 2008, I ordered a review of the case by a senior CPS lawyer with no prior involvement in the case and asked Brian Altman QC, First Senior Treasury Counsel, to advise on the safety of the convictions.
“Having considered the conclusion of that review carefully, I have decided that the safety of the convictions should be considered by the Court of Appeal. That is because it appears to me that a senior CPS lawyer, who has since left the organisation, may not have complied fully with disclosure obligations in this case.
“The prosecution cannot lodge an appeal in these circumstances, so I have taken the unusual step of writing to the legal representative of those convicted, inviting them to appeal on the basis of non-disclosure of material relating to the activities of the former undercover officer, Mark Kennedy. The safety of the convictions is a matter that can only be dealt with by the Court of Appeal.
“Because I have real concerns about any prosecutions involving Mark Kennedy, in April I asked the Metropolitan Police Service to examine their records relating to Mr Kennedy’s deployment to confirm that the Criminal Procedure and Investigations Act 1996, which sets out disclosure obligations, was adhered to.
“The MPS has agreed to that request and is currently engaged in that exercise. This is a task that can only be carried out by the police because they hold the relevant records, but should any issues arise in cases prosecuted by the CPS, I will ensure those cases are reviewed by a senior CPS lawyer.
“More generally, I have asked Sue Hemming, the head of the CPS Special Crime and Counter Terrorism Division, to work with our Complex Casework Unit Heads to identify, from our available records, whether there are any further cases involving undercover officers that might need to be examined.
“What happened in cases involving Mark Kennedy cannot be allowed to happen again. I have therefore negotiated a Memorandum of Understanding between ACPO, SOCA and HMRC and the CPS setting out in clear terms the approach to be followed in criminal cases involving undercover officers where it is essential that there is early, frank and regular liaison between investigating officers and prosecutors.
“In addition, I have put in place mandatory training for all senior CPS staff who supervise prosecutions involving undercover officers. That training commenced in January this year and is ongoing.”
- The defendants were charged with obstructing engines or carriages on railways, an offence under section 36 of the Malicious Damage Act 1861.
- 22 of the 29 individuals were convicted on 3 July 2009 at Leeds Crown Court after trial. The remaining seven pleaded guilty on different dates: five on 29 June 2009, one on 3 July 2009 and one on 4 September 2009.
- The legal representative of the defendants raised their concerns with the DPP in a letter on 17 August 2011. The case was then reviewed by a senior CPS lawyer, who reported her findings to the DPP on 12 January 2012. Brian Altman QC, First Senior Treasury Counsel, was then instructed to review the case. He provided his advice to the DPP on 3 April 2012
- The Memorandum of Understanding was signed by Keir Starmer QC, Sir Hugh Orde OBE QPM (Association of Chief Police Officers), Trevor Pearce QPM (Serious Organised Crime Agency) and Donald Toon (HM Revenue & Customs) in June 2012 and is now in force.