What is NCND?

Posted by Malcolm Johnson on

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"NCND" is "Neither Confirm Nor Deny". This was the response of the Metropolitan Police to the Claimants in Dil and Others v Commissioner of the Police for the Metropolis [2014] EWHC 2184 (QB).

The Claimants (save for one) were environmental activists or campaigners on social justice. They brought claims for deceit, misfeasance, assault/battery or negligence against the Metropolitan Police. They alleged that the police encouraged or permitted undercover officers in the Special Demonstration Squad ("SDS"), a unit that was later disbanded, to embark on sexual relationships with women members of groups whose activities were of concern to the police, as a means of infiltrating such groups.

In their pleaded Defence the police either expressly refused to confirm or to deny each of these allegations, both the general and the individual. Their position was based on a well established policy that the police would neither confirm nor deny ("NCND") whether a particular person was either an informer or an undercover officer. The Claimants applied for an order "seeking a determination and consequential Order that pursuant to CPR 3.1(m) the defendant is not entitled to rely on NCND so as to resist pleading a Defence in accordance with CPR 16.5(1)".

Mr Justice Bean considered the allegations by the individual claimants and the Defence. He set out the following principles from established caselaw.

  1. There was a very strong public interest in protecting the anonymity of informers, and similarly of undercover officers (UCOs), and thus of permitting them and their superiors neither to confirm nor deny their status; but it was for the court to balance the public interest in the NCND policy against any other competing public interests which might be applicable.
  2. There was a well-established exception in a criminal trial where revealing the identity of the informer or the UCO was necessary to avoid a miscarriage of justice.
  3. Even where an individual informant or UCO had self-disclosed, the police (or the Secretary of State) might nevertheless be permitted to rely on NCND in respect of allegations in the case where to admit or deny them might endanger other people, hamper police investigations, assist criminals, or reveal police operational methods.

Bean J said that he did not accept that there was now, in 2014, any legitimate public interest entitling the police to maintain the stance of NCND in respect of this general allegation. The claims related to alleged activities of officers of the SDS prior to its disbandment in 2008. It was not suggested that the use of long term sexual relationships of this kind as a police tactic was continuing. It was also not argued that it would be appropriate now, nor that (if it did occur) it was appropriate then.

Two of the UCO's had been publicly named by either the police or the Independent Police Complaints Commission. In those cases, NCND could no longer be relied upon. However in another two cases, neither of the men had self-disclosed nor been officially named as an undercover officer, although each had been named publicly in a variety of media. In those circumstances Bean J considered that the Commissioner should not be required to admit or deny whether either of them was an undercover officer or admit or deny their real name.

That might only postpone the day of reckoning, in the sense that if the case proceeded and no evidence was adduced to challenge that put forward by the Claimants, it appeared likely that the respective factual cases put forward by them would be accepted.

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About the Author

Malcolm is an Senior Associate in our London office, with nearly twenty years' experience.

Malcolm Johnson
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