As police misconduct once again creates headlines, Sascha Lavin uncovers the regular use of secrecy agreements among local forces

Police forces in England and Wales are using non-disclosure agreements (NDAs) to potentially hide wrongdoing, analysis by the Byline Intelligence Team can reveal.  

As a damning report last week revealed further evidence of a culture of misogyny in the Metropolitan Police, new data suggests that police forces are using NDAs to bury their heads in the sand at a time when institutional learning is critical. 

Almost three-quarters (73%) of the 15 police forces that responded to the Byline Intelligence Team’s Freedom of Information request had issued an NDA over a five-year period since 2016. Of the 11 police forces that used these restrictive confidentiality contracts, 144 were signed. 

NDAs were designed in the 1980s to protect trade secrets, legally gagging people from sharing information with anyone – from therapists to future employers – for the rest of their lives, raising the question: why are police forces attempting to silence so many people? 

Canadian law professor and NDA whistleblower Dr Julie Macfarlane is aware of many cases in which public institutions have asked an individuals who has committed misconduct to sign a confidentiality clause. 

Dr Macfarlane warns that the implications are far reaching, because “the next institution, the next police force, that hires that wrongdoer won’t know why they left the previous one, which means that they can be a harm to others in the new workplace”.

Gagging orders can also be a condition of a settlement agreement. When firearms officer Rhona Malone reported sexism at work, Police Scotland offered her a payout as long as she signed an NDA. 

Other confidentiality agreements could be used for legitimate reasons, such as ensuring that police officers do not share sensitive information about vulnerable people with members of the public when they leave the force. 

Despite being the fifth-smallest force in England and Wales, employing less than 1,200 staff, Gloucestershire Constabulary issued 32 NDAs between 2016 and 2020. 

A spokesperson for the force said: “We treat any agreements that contain a confidentiality clause as a ‘non-disclosure agreement’. This includes employment contracts where the protection of information, for example, is required.”

However, no NDAs were issued for this purpose in the time period. Gloucestershire Constabulary also signed NDAs “when an agreement is reached in the process of termination of employment and/or in settlement of legal proceedings”. 


Public Secrecy

“We don’t know exactly how often the police or any other organisation are using what we would say is the inappropriate misuse of NDAs,” Dr Macfarlane told Byline Times.

A Derbyshire Constabulary spokesperson said that the 28 NDAs the force had issued over a five-year period “relate to those in which a member of staff has accepted voluntary redundancy”. However, it is not possible to determine whether they were legitimately used in all cases. 

Dr Macfarlane is concerned about the one-size-fits-all way in which many police forces record NDA use.

“I suspect that there are probably a lot more NDAs signed over misconduct, but I don’t have data to prove this, then there are over trade secrets,” he said. “But, if you lump the two together, then somehow you can always say, well, most of those are for trade secrets, so it’s really important to parse those things out.”

That almost two-thirds of police forces in England and Wales did not respond to Byline Intelligence Team’s Freedom of Information request, raises further transparency concerns. Many, like the Metropolitan Police, argued that it would be too costly to answer, while others, including Hertfordshire Constabulary, refused to respond as doing so could “identify an individual or compromise any civil claim”. 

Police forces are not the only public institutions that spend taxpayers’ money on gagging orders to potentially bury misconduct and silence victims. Nearly a-third of universities between 2016 and 2020 asked students who raised grievances to sign an NDA. But, universities are beginning to clean-up their act: 13 universities recently pledged to stop using NDAs to silence sexual assault victims. 

Politics is also riddled with over-reliance on secrecy agreements: between 2014 and 2019, at least 359,000 people signed confidentiality contracts with councils. Additionally, the House of Commons spent £2.4 million on settlements – with gagging clauses attached – to silence 53 former members of staff. 

This is why Dr Macfarlane, together with Zelda Perkins – the first person to break a confidentiality contract with Harvey Weinstein – has launched ‘Can’t Buy My Silence’, a global campaign to end the misuse of NDAs. It hopes that Parliament will finally pass a law to ban NDAs, proposed by former Prime Minister Theresa May in March 2019, and stop covering-up misconduct. 

The Police Federation did not respond to Byline Times’ request to comment.

This article was produced by the Byline Intelligence Team – a collaborative investigative project formed by Byline Times with The Citizens. If you would like to find out more about the Intelligence Team and how to fund its work, click on the button below.

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