Prosecutors have been ordered to pay the legal bill of 29 environmental protesters who were unjustly convicted.

The Crown Prosecution Service has been forced to pay £43,000 after conceding that crucial evidence gathered by an undercover police officer was improperly withheld from the protesters’ trial. The money covers the legal costs incurred by the protesters and their out-of-pocket expenses.



In recent years, police and prosecutors have been accused of systematically concealing evidence collected by undercover officers from trials of campaigners.



So far, more than 50 protesters have been wrongly convicted or prosecuted because the activities of undercover police officers had been unfairly buried in the legal proceedings. That total may however increase as other potential miscarriages of justice are still being examined.



As this blog here describes, the 29 had been convicted in 2009 after they blocked a train carrying coal from going into the Drax power station in Yorkshire.

But last year, their convictions were overturned after judges ruled that the role of undercover police officer Mark Kennedy had been hidden. (For more details, read this story here).

The lord chief justice, Lord Thomas, said there had been “a complete and total failure” to disclose evidence that would have been fundamental to the activists’ defence. He said that “although it was beyond argument that the involvement of Mark Kennedy should have been disclosed, it was not.”

After the quashing of the convictions, one question remained - who was responsible for the failure to disclose the key evidence?



In his judgment, Thomas had said that either prosecutors or police were at fault, adding that they were giving different accounts of what had happened.

He had asked for an official inquiry to establish who was responsible as he believed the culprits should be made to pay.

Now the court of appeal has ordered that the CPS will formally foot the bill, after finding that the “Crown failed to make a disclosure fundamental to the defence”. The court was satisfied that the costs had been incurred by the activists “as a result of an improper omission by the CPS”.

However the police’s share of the blame is unclear as the results of the inquiry have not been made public.

It suits both the police and the CPS to keep such matters opaque. They have sought to argue that the concealment of evidence collected by undercover officers at the trials of campaigners has been limited. (For a critical appraisal of this stance, read, for example, these blogs here and here by activist Merrick Badger or this article by Olly Knowles, one of those spied on by Kennedy).

However the state’s attempts to keep a lid on these allegations are coming under strain. Home secretary Theresa May has asked QC Mark Ellison to examine independently how many campaigners have been wrongly convicted because of undercover police operations. (See these blogs here and here for more details).

His work is due to be completed before the public inquiry into undercover policing - to be headed by Lord Justice Pitchford - starts. The issue of the miscarriages of justice is likely to be ventilated at the public inquiry.

Robbie Gillett, one of the 29 acquitted protesters, said :”It is essential that the upcoming public inquiry into undercover policing includes the CPS. The use of undercover police against political movements is about controlling and stifling political dissent. The Crown Prosecution Service is part of this and must not escape public scrutiny.”

The protesters were represented by Mike Schwarz, of the civil liberties law firm Bindmans, who often defends campaigners.

