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Participation in criminality and the Covert Human Intelligence Source (Criminal Conduct) Act 2021
By Simon McKay | Barrister
Introduction
The Covert Human Intelligence Source (or CHIS), previously known, amongst other things, as an informer, briefly became the least likely subject of conversation in millions of households throughout the United Kingdom recently following the latest series of Line of Duty where the sudden and violent demise of a CHIS formed a key part of the increasingly implausible plot. There was even a voice over at the end of the first episode, explaining the acronym, although for the reasons that follow, it is hardly a self-explanatory term. Behind the drama, a much more serious issue surrounding the CHIS played out in parliament in the form of the enactment of the Covert Human Intelligence Source (Criminal Conduct) Act 2021 (the 2021 Act).
CHIS: background
The practice of “informing” might be the world’s second oldest profession. Sun-tzu referred to spies in the Art of War (so the 6th century BC). There are a number of different terms, excluding the vernacular, for the individual performing this role. The correct statutory term is now Covert Human Intelligence Source or “CHIS” or abbreviated to “Source”. The CHIS was created by the Regulation of Investigatory Powers Act 2000 (RIPA) and was described as “inelegant” by the former Chief Surveillance Commissioner Sir Andrew Leggatt and is both unattractive as a term and a concept. It is not difficult to see why the name has not readily caught on. By far the most significant difficulty it has caused is that it subsumes within its definition both informants, what Lord Coke described as “viperous vermin”, and undercover officers and agents of the state.
This confluence of legal concepts is not illuminated by the statutory definition of a CHIS. This is found in section 26(8) of RIPA and defines a person as a covert human intelligence source if “he establishes or maintains a personal or other relationship with a person for the covert [i.e. secret] purpose of facilitating the doing of anything” falling within two types of secret conduct. First, “he uses such a relationship to obtain information or to provide access to any information to another person (i.e. the police or intelligence services); or, second, discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship”. The definition is complicated yet further by an earlier provision which states references to the conduct of a CHIS includes any incidental conduct arising from the main purposes or anything amounting to inducing, asking or assisting a person to engage in the conduct of a CHIS, or to obtain information by means of the conduct of the CHIS.
The use and conduct of CHIS has given rise to a vast spectrum of legal challenges engaging privacy and fair trial rights and moral and ethical crises: undercover police officers have conceived children whilst in “legend”, have adopted the identities of dead children, and in Australia a Royal Commission was launched after it emerged police were using a defence barrister to inform on the activities of her clients. The issue has recently arisen in the context of using juveniles as CHIS. The headlines in the Guardian following the publication of a Select Committee’s report in 2018 on the subject read, “UK intelligence and police using child spies in covert operations”. Entrapment and the role of the agent provocateur have always been legally problematic as where it arises in the course of proceedings it will generally result in an application for a terminating ruling. The related issue of a CHIS’s participation in crime has, until recently, occupied the grey area of law, policy and constitutionality. A recent challenge in the Investigatory Powers Tribunal (the UK’s surveillance court), in Privacy International and others v Secretary of State for Foreign and Commonwealth Affairs and others [2019] UKIPTrib_17_186_CH, upheld by the Court of Appeal earlier this year has led to an unprecedented change in the legal landscape that has largely gone unnoticed.
Participation in criminality before the Act
The regulatory framework in section 26 of RIPA previously provided no express provision to permit a CHIS participating in criminality. Section 27 makes lawful ‘for all purposes’ conduct if an authorization under Part II of RIPA confers an entitlement on the part of a source to engage in such conduct providing he or she does not exceed the terms of any such authority. As Starmer et al made clear (Criminal Justice, Police Powers and Human Rights, 2001) this provision ‘is intended to provide a lawful basis for activity previously lacking in statutory regulation, rather than to confer immunity from otherwise illegal criminal activity by making such activity lawful’. In Re McE [2009] UKHL 15, Lord Hope held that ‘the whole point of the system of authorisation that [RIPA] lays down is to interfere with fundamental rights and to render this invasion of a person’s private life lawful’.
A former iteration of the Code of Practice on Covert Human Intelligence Sources stated that a use and conduct authorization may ‘in a very limited range of circumstances’ render unlawful conduct that would otherwise be criminal lawful [Para 2.10]. It now states circumspectly, ‘neither Part II of the 2000 Act nor this code of practice is intended to affect the existing practices and procedures surrounding criminal participation of CHIS’ [Para 1.9].
The common law position
The common law has for some time recognized the need for police officers, investigators or others acting on their behalf to engage in criminal behaviour. In R v Birtles [1969] 1 WLR 1074, for example, Parker LCJ noted that although ‘it may be perfectly proper for the police to encourage the informer to take part in the offence, or indeed for the police officer himself to do so, the police must never use an informer to encourage another to commit an offence he would not otherwise commit’.
Admitting the evidence of a participating source is likely to give rise to similar considerations to those that arise in cases where entrapment is alleged. The leading authority remains R v Pipe (1966) 51 Cr App R 17. However, the admissibility of accomplice evidence may give rise to Article 6 arguments where there has been a failure to treat the evidence with caution and is subject to suitable warnings by the trial judge to the jury.
It was argued in the Privacy International case, amongst other things, that the current regime breached the European Convention on Human Rights on the basis that the use of participating sources is not ‘in accordance with law’ and it was always likely that at some stage the courts will have to grapple with arguments of both immunity and incompatibility on legality grounds. However, whilst the immunity issue is potentially problematic by virtue of the construction of RIPA, the question of participation has historically not one of privacy but of public policy. In summary, the conduct of a CHIS (whether participating in criminality or not) is the subject of what is, at least absent authority to the contrary, a human rights-compliant regime. The question of participation will need to be considered both evidentially (ie whether the individual will testify against those he or she was deployed against) and from a prosecutorial perspective (ie whether to charge or not).
The opening sentence of this 3/2 majority judgment gives an indication of its importance: the case ‘raises one of the most profound issues which can face a democratic society governed by the rule of law’. It related to a challenge brought by a group of civil liberty organisations to a policy of the intelligence services only publicly avowed as recently as 1 March 2018. The policy concerned what was known as the ‘Third Direction’. The reference to the term ‘Direction’ is an allusion to the power (now) contained in section 227 of the Investigatory Powers Act 2016 providing for the Prime Minister to give ‘directions’. The Third Direction was issued on 22 August 2017 and is more correctly described as the Investigatory Powers Commissioner (Additional Directed Oversight Functions) (Security Service’s Agent Participation in Criminality) Direction 2017. It provides in paragraph 3 that the Investigatory Powers Commissioner ‘shall keep under review the application of Security Service Guidelines on the use of agents who participate in criminality and the authorisations issued in accordance with them’.
There were a number of grounds advanced challenging the lawfulness of the Policy. In summary these were: (i) it lacked any lawful basis in statutory or common law; (ii) it amounted to a de facto power to dispense with the criminal law; (iii) its secret nature was unlawful and it was not in accordance with law for the purposes of the European Convention on Human Rights (the Convention); and (iv) it was in other significant respects in violation of the rights set out in Articles 2, 3 and 5 of the Convention.
The Guidelines remain secret. However, extracts were published in the course of the judgment or a gist provided. They were provided for agent-running sections of the Security Service on the use of agents who participate in criminality. It recognised that Part II of RIPA applies to the Security Service’s use of agents and that it ‘conducts its agent operations in accordance with RIPA, its subordinate legislation and the CHIS Code of Practice issued under it’. In addition, the Guidelines stated: (a) RIPA does not provide any immunity from prosecution for agents or others who participate in crime, although section 27 RIPA provides that conduct specifically authorised under a Part II authorisation is ‘lawful for all purposes’; (b) subject to this, neither RIPA nor the Codes of Practice provides for the authorisation of participation in criminality; and (c) participation in criminality was likely to necessary and proportionate in some cases, in particular those involving sophisticated terrorists and others who pose a threat to national security or involve the commission of serious offences. Such conduct was essential to maintain access to life-saving intelligence or to disrupt more serious criminality or to ensure the agent’s safety, security and ability to pass on intelligence to the Security Service.
The Guidelines, provided for ‘authorisation of use of participating agents’. This was an internal, parallel authorisation regime that the Service established to operate alongside the statutory scheme in RIPA. This provided that those officers empowered to authorise under RIPA could also concurrently authorise participation in criminality. This was subject to three criteria: (i) there is a reasonable prospect that the agent will be able to provide information concerning serious crime; (ii) the information cannot readily be obtained from any other means; and (iii) the need for the information that may be obtained by the use of the agent justifies this use notwithstanding the criminal activity likely to be engaged in. A balancing exercise must then be carried out where the authorising officer weighs ‘the potential harm to the public interest from the criminal activity’ engaged in by the agent versus ‘the benefit to the public interest from the information’ it is anticipated the agent will provide. Unless, having carried out this exercise, the authorising officer is satisfied that the public interest is served by authorising the participation, no authorisation should be granted.
The Guidelines go on to make clear that the authorisation has no legal effect and does not confer immunity from prosecution. The purpose of authorisation was to provide an explanation and justification for the Service’s decision-making should this be required at a later date (for example to law enforcement or prosecutorial bodies).
Procedural requirements included the completion of an authorisation form and specifically, ‘that full and accurate records are made of everything said to an agent on the subject of participation and of his response’. There was also a requirement to explain no immunity was being given from prosecution and that individual officers ‘may be called to account for their decisions and actions’. There was a prohibition on encouraging, counselling or procuring the commission by an agent of a criminal offence, other than the offence to which the authorisation related.
It emerged during the proceedings that the guidelines had been in place ‘since the early 1990s’. Home Secretaries had been briefed on their existence during their tenure but it was not until 2011 that the Security Service first apprised the Intelligence Services Commissioner of them and 2012 before the Prime Minister invited the Commissioner to keep them under review, though he emphasised ‘such oversight would not provide endorsement on the legality of the policy’. In 2014, this, (and other) extra-statutory functions, were placed on a statutory footing within section 59A RIPA (since replaced by section 230 Investigatory Powers Act 2016). As a consequence of the first notification to the Commissioner and at his direction, the Security Service wrote to the Crown Prosecution Service in 2012 providing them with the guidelines as ‘cases may arise in which our two Services need to discuss participation by a Security Service agent’. The existence of the guidelines remained secret until a Prime Ministerial statement on 1 March 2018.
The judgment held that the policy was lawful for a number of reasons but principally as it was underpinned by an implied power in the Security Service Act 1989 (the legislation placing MI5 on a statutory footing). The Court of Appeal later agreed. However, it identified lacunae in the existing law, in particular as far as non-intelligence agency public authorities were concerned. It was considered that participation in crime by CHIS required a statutory footing. The 2021 Act does this but goes much further. On issue two, the argument that authorisation amounted to dispensation from the effect of the criminal law the IPT noted that there was in fact no immunity provided. Arguably this is no longer the case since a participation in criminal conduct authority under section 26, confers under section 27(1), ‘an entitlement to engage in that conduct on the person whose conduct it is’ and provided the conduct is in accordance with the authorisation, it ‘shall be lawful for all purposes’. Although there is no express immunity from criminal law the new provisions amount to this in practical terms.
The 2021 Act
The ‘profound issue’ for democratic society has been resolved by the 2021 Act, a short amending piece of legislation consisting of fewer than ten provisions. Criminal conduct (of any kind, from the minor to the most serious) can now be authorized, under section 26 of RIPA, in certain circumstances. The conduct is that engaged in ‘in the course of, or otherwise in connection with’ the conduct of a CHIS, and so broader than merely the ‘use and conduct’ itself. Section 29 of RIPA now makes it clear that what would be a standard ‘use and conduct’ authorization does not authorize criminal conduct.
Under the amended section 29, authorization to engage in criminal conduct can only subsist concurrently with a standard use and conduct authority. Participation in crime can only be authorized on the grounds of national security, preventing or detecting crime of disorder or in the interests of the economic well-being of the United Kingdom. Authorisation must be necessary and proportionate and only where the operational objective cannot be achieved without the commission of the criminal conduct that is the subject of the authorization.
There are special provisions in the amended section 29 in respect of juveniles. There must be a risk assessment that concludes there is no ‘foreseeable psychological or physical harm’. This is a subjective test of reasonableness by the authorizing officer. An extra layer of ‘protection’ exists for sources under sixteen (so the new regime contemplates authorizing a child under this age to engage in criminal conduct). Similar provision exists for ‘vulnerable adults’.
There is no ‘double lock’ (to adopt the language used in respect of the IPA) for the new regime although there is a requirement in an amended section 32 of RIPA to ‘notify’ the Investigatory Powers Commissioner’s Office (IPCO) of the grant or cancellation of an authority. IPCO’s oversight powers are expanded to accommodate superintendence of both the authorizations and the exercise of the powers in general: section 229 of the IPA is amended by the 2021 Act.
Preliminary thoughts
In many respects the 2021 Act asks more questions that it answers. No doubt some clarification will be provided in the obligatory regulations that follow and an amended Code of Practice in due course. However, there are a number of pressing issues arising out of the new provisions.
First, the absence of judicial approval is both anomalous and inconsistent with the safeguards in the IPA. Judicial approval is required where a CHIS is likely to acquire material subject to legal professional privilege, and is difficult not to equate the authorising participation in crime, with all its constitutional importance, as at least demanding a similar layer of protection. Judicial approval is now required for use of the majority of communications surveillance resources available to the State under the IPA.
Second, there is no limit to the nature of the criminality that can be engaged in. Although in the course of argument in the IPT, the Government made it clear it would never sanction murder under the existing arrangements, there is no prohibition to this in the provisions set out in the 2021 Act. Of course it is unlikely that to do so could ever meet the threshold of necessity and proportionality but this will be the ultimate judgment call of the authorising officer, with retrospective oversight carried out by IPCO. The change of position therefore is tectonic: from no legal basis for law enforcement to authorise participation in criminality to being able to authorise in principle any kind of participation.
There is a third and related point and that is the relatively low threshold forming the basis of authorisation. This is the prevention and detection of crime (not, as appears in other provisions of RIPA and the IPA, serious crime).
The fourth issue is the position in relation to juveniles and vulnerable adults. The Select Committee report on the use of children as CHIS sets out legitimate concerns about oversight and the frequency of risk assessments. Their anxieties are unlikely to be assuaged by the new provisions sanctioning a minor’s involvement in criminality.
Anecdotally there is some evidence that IPCO is now requiring any police force to authorise participation in criminality where the CHIS is engaging in criminality outside use and conduct (i.e. they are criminals, who inform about the activities of other criminals but do not participate in crime as part of their function as a CHIS). This blurs the lines of participation – a matter that will inevitably be exploited by the CHIS – and is unlikely to assist either public authorities, lawyers or the courts in delineating where general criminality or state-based authorisation for participation in criminal conduct begins and ends.
Conclusion
The 2021 Act does more than codify the ‘existing practices’ referred to in the Code of Practice and presents an epoch-changing moment for UK law, which has generated little controversy. The practicality and utility of CHIS participating in criminal conduct is self-evident but this does not justify legislative complacency but rather, should demand exacting standards both in terms of how proposed legislation is introduced, debated and voted on but also in terms of the forensic rigour of what is enacted. This issue, foreshadowed by serious judicial pronouncements about democracy, the constitution and the rule of law, demanded more of parliamentarians. The role of juveniles, absence of judicial approval and a lack of specificity raise serious concerns and trivialise the judicial context. As with much of our recent legislation a raft of regulation will follow and a revised Code. But it is unlikely these will go much further in addressing the concerns. This new law authorising statutorily participation in criminal conduct by a CHIS has arrived not with a bang but a whimper.