CEDAW/C/74/D/126/2018
were unable to continue their legal action and were essentially forced to accept the
settlement offer. To require the authors to take such an immense risk to exhaust
domestic remedies would be unreasonable and would perpetuate the intersecting
discrimination that they suffered.
5.3 Whereas the State party asserts that the authors did not raise claims of
discrimination before the national authorities, the authors maintain that the
discriminatory element of their claims was made clear before the national courts. In
their plea, five of the authors stated, regarding the risk created by the conduct of the
undercover officers, that “the aforesaid risk had a discriminatory impact on women
in that it impacted upon them disproportionately if not exclusively at the time ”. The
Human Rights Act 1998 could have been invoked only by two of the authors, because
it came into effect only in October 2000. The authors did not invoke article 14 of the
European Convention on Human Rights because their claim arose in October 2011,
before the extent of the activities of the officers was known. The clear discriminatory
impact has become more evident over time. The authors maintain that the State party
understood that their complaints concerned discrimination, as is made clear from the
public apology issued, which contained the following remark: “I entirely agree that it
was a gross violation [of privacy] and that it may well have reflected attitudes towards
women that should have no part in the culture of the Metropolitan Police ”. Moreover,
in its views in communication No. 19/2008, the Committee considered that, although
the State party asserted that the author had not raised discrimination before the
national authorities, discrimination had clearly been shown owing to the presence of
gender-based violence. 5 The facts that the authors have raised before the Committee
are the same as those raised before the national courts.
5.4 Furthermore, the remedies that the authors received (compensatory damages and
a public apology) were not “complete and effective remedies” within the meaning of
the Committee’s general recommendations. The women remain entirely ignorant of
the reasons for and extent of the surveillance to which they were subjected.
Specifically, they do not know: (a) whether or why they were targeted for a
relationship; (b) at what level of authority people were aware of or sanctioned the
relationship; (c) when the surveillance ended, or whether it continued after the
relationship ended; (d) how information about them was shared; (e) what kind of
information was shared; (f) how much information was shared and with whom; and
(g) by whom they were watched, and when. This is crucial information, without which
the authors are unable to know the scope of the harm to which they were subjected,
and they are haunted by uncertainty. The refusal to provide information has
exacerbated the authors’ suffering. The opportunity for the authors to understand the
truth of what happened to them should form a key component of treatment. The
authors describe in detail their attempts to obtain disclosure of such information.
5.5 In addition, the remedies that the authors obtained from the State party did not
include an assurance of non-repetition. While the College of Policing produced draft
guidance in 2016, stating that such sexual relationships should never be authorized or
used as a tactic of deployment, the authors do not know whether the guidance has
ever been formalized, nor is such guidance sufficient reassurance of non -repetition.
The authors seek legislative changes to criminalize the activity in question and ensure
that it will result in prosecution, while allowing officers to raise as a defence the
existence of extraordinary and extenuating circumstances. In the absence of such
changes, the authors remain at risk of being subjected to the impugned behaviour
again should they engage in political activism, and they are psychologically affected
every time evidence of similar deceit is discovered. Guarantees of non -repetition are
part of an effective remedy.
__________________
5
12/15
Kell v. Canada (CEDAW/C/51/D/19/2008), para. 7.4.
19-22187