UK: Human Intelligence And Police Informers – Separating Law From Operational Strategy

Last Updated: 13 November 2017
Article by Nick Barnard

At the conclusion of four criminal trials arising from Operation Sanctuary, following which 17 men and one woman were convicted of offences related to the abuse of vulnerable girls in Newcastle, a furore erupted over the use of police informers. It emerged that a man ('XY') with 53 convictions (including rape of a child) had been paid over £10,000 for information during the investigation, although no evidence from him had been relied upon at trial.

Many commentators, most notably the NSPCC, questioned XY's deployment in strong terms, both with respect to abuse victims being deliberately exposed to a convicted sex offender and the risk of the investigation being fatally undermined by his involvement. In response, Northumbria police were adamant that the strategy was justified, with Chief Constable Steve Ashman asserting that he would have made the same decision again. The subsequent IPCC investigation found no misconduct and an application prior to the second trial to dismiss the prosecution as an abuse of process was refused, following claims by XY that the police had encouraged him to plant drugs and escort victims to abuse 'parties'.

For all the headlines and debate about XY, the relevant criminal law issues concerning informers (or Covert Human Intelligence Sources – 'CHIS') are much narrower. Whilst there are operational questions to be asked as to whether it was appropriate or even safe to pay a convicted sex offender to infiltrate a child abuse ring, this needs to be separated from questions of law as to whether (i) XY's deployment was legal and (ii) the evidence arising from his involvement was admissible.

RIPA and authorisation of CHIS

The law on the deployment of informers is governed by Part II of the Regulation of Investigatory Powers Act 2000 ('RIPA') and the accompanying CHIS Code of Practice (last revised in December 2014).

The primary function of RIPA with respect to CHIS is to ensure an investigative authority's actions are compatible with Article 8 of the European Convention on Human Rights (the right to respect for private and family life, including the right to establish and develop relationships). The question with respect to CHIS is whether the state's interference with a private relationship (i.e. by contriving for it to be conducted under false pretences and the product being covertly supplied to the authorities) can be justified.

It is important to distinguish at the outset between 'civilian' CHIS (such as XY, who would usually be described as an 'informer'), and CHIS belonging to the police or other investigative authorities (who are more likely to be described as 'undercover'). Given the proactive deception required to place an operative and the heightened risk of encouraging offences which might otherwise not be committed, the regulation of the latter is more extensive.

Rather than prescribing conditions necessary to create reliable criminal evidence, or giving any guidance as to the operational risk/reward ratio, RIPA is instead concerned with the impact on suspects (or members of the public, as the case may be) during or as a result of the investigation.

With regards to authorisation of a civilian CHIS, s29(2) RIPA simply requires that the designated authorising person (for example, a police superintendent) is satisfied that:

  1. The use is necessary on one of the prescribed grounds (e.g. national security, assessing or collecting tax, prevention or detection of crime);
  2. The use is proportionate to the objective (i.e. what might be achieved by the exercise); and
  3. There are sufficient safeguards in place regarding oversight and welfare of the CHIS.

However, the conditions carry only limited weight, as failure to obtain RIPA authorisation does not make the use of the source unlawful, but rather increases the risk of an action (i.e. under Article 8) by those subject to the deception, or of any evidence gathered by or derived from the CHIS being ruled inadmissible.

Interestingly, there is no requirement under s29(2) RIPA for the designated person to consider the welfare of anyone but the CHIS before providing the authorisation. The closest that the CHIS Code of Practice comes to considering those who might be put in harm's way is requiring 'that all the CHIS's activities are properly risk assessed'. The risk assessment in respect of XY's deployment would no doubt make interesting reading.

Considerations of the evidential use of CHIS Code of Practice take up just three paragraphs out of its 67 pages. In short, for all the debate surrounding the deployment of XY, the criminal law questions arising from the use of civilian informers in police investigations are the same as for any other source of evidence, i.e.:

  1. Would admission of the evidence (whether obtained directly from the informer or as a result of his or her involvement) have such an adverse effect on the fairness of the proceedings that it ought not to be admitted (i.e. the test under s78 Police and Criminal Evidence Act 1984 ("PACE 1984"))?

    For an extreme example, see R v Allan [2004] EWCA Crim 2236 in which an informer was placed in a cell with the defendant and instructed to try and extract information. The exercise succeeded and the evidence produced was used to convict the defendant of murder. At trial, the defendant failed to have the confession evidence excluded under s78 PACE but succeeded at the European Court of Human Rights, on the basis that the informer had conducted a quasi-interrogation on behalf of the state. As such, use of the evidence breached Article 6 ECHR by violating his right to silence and to avoid self-incrimination.

  2. Is there anything arising from the use of the informer which makes the prosecution so unfair and wrong as to amount to an abuse of process?

    This issue is particularly relevant to disclosure, as the prosecution may seek to withhold the identity of the informer on public interest grounds (both in respect of the risk to that specific informer, and to preserve faith in the system for future informers), or fail to disclose any agreements made with him or her. However, in the absence of this material (which undoubtedly falls within the prosecution's disclosure obligations), can the defendant properly challenge the case against him or her?

    In particular, where an informer has been given an incentive to enhance the case against the suspect, can it be certain that in doing so the police have investigated lines of enquiry which lead away from the suspect (which the informer will have had no incentive to pursue)?

    Alternatively, if the informer's evidence is used, in the absence of full knowledge of any incentives given, can the defendant properly cross-examine the informer and invite the jury to consider the incentive when evaluating his or her evidence (a point successfully raised in the Allan appeal. See also the October 2017 IPCC report into the investigation of the murder of Kevin Nunes. Five men were convicted in 2008 only to have their convictions quashed in 2012 after it emerged that the police had mishandled the key witness. In particular, the court was unaware that a significant reward payment had been agreed and that the witness would receive £15,000 at the conclusion of the trial.1)

Additional risks for undercover informers

Where a CHIS is a member of the police or other investigative authority, there are two areas of risk in addition to those involved in a civilian deployment.

Forming private relationships which breach Article 8 ECHR

First, where a CHIS takes on an entirely new identity and forms relationships with investigative targets, the risk of breaching the target's Article 8 rights to develop (non-deceptive) private relationships is significantly greater. By comparison, a civilian CHIS is unlikely to be practising any significant deception as to his or her identity, but rather as to the nature and purpose of his relationship with the target. The consequences of these higher stakes have been all too disturbingly illustrated in the recent scandals2 concerning undercover police officers who have formed intimate relationships and even fathered children with the subjects of an investigation, with devastating consequences for the deceived parties when the truth was eventually revealed.

However, despite this obvious and severe risk, the current legislation and guidance for deployment of undercover CHIS differ little from that applying to civilian CHIS.

With regard to the CHIS Code of Practice, the primary difference is that deployment of an undercover CHIS must be approved by a more senior officer than for a civilian CHIS, and notification given to (but not necessarily approval sought from) the Investigatory Powers Commissioner.

With regards to operational guidance, aside from being bound by the overarching police Code of Ethics, the specific Code of Conduct for Undercover Operatives currently available on the Association of Chief Police Officers website3 runs to just two pages and is restricted to general principles rather than specific instructions.

In response to the undercover police scandal, a revised ACPO Authorised Professional Practice guideline was put out to consultation in August 20164. Amongst other things, the consultation draft forbids CHIS from entering into sexual relationships or using controlled drugs (although indicates that such activity may be acceptable if necessary to avoid an 'immediate threat' to the CHIS and/or a third party).

Whilst the consultation draft is a far more specific document than any predecessor, it has yet to come into force. Given the outcry surrounding both the XY and undercover officer cases, the new Investigatory Powers Commissioner (Lord Justice Fulford, whose weighty role consolidating the previous responsibilities of the Surveillance, Interception of Communications and Intelligence Services Commissioners commenced in September 2017) may wish to consider revising the CHIS Code of Practice sooner rather than later.

As well as avoiding a future furore, a revised and more specific set of guidelines may also result in courts being more willing to impose consequences (for example, by staying a prosecution as an abuse of process or excluding evidence under s78 PACE) for breaches of RIPA and the CHIS Code of Practice than has previously been the case.5 This in turn may encourage investigators to pay more careful heed to the use of undercover CHIS at the operational stage.

Entrapment

The second risk of deploying undercover CHIS is that of entrapment. Whilst this risk exists when directing civilian CHIS (indeed, XY claimed that he had been told to plant drugs and ferry victims), it is plainly heightened when an officer infiltrates suspects with a view to living alongside and gathering evidence on their offending.

Although entrapment is not itself a defence, it is open to the court to either stay the proceedings as an abuse of process (on the basis that the offence was part-generated by the state) or to exclude the relevant evidence under s78 PACE. The House of Lords has held that the former is the preferable option, on the basis that the conclusion reached when a court considers that entrapment has taken place is that the prosecution should never have been brought in the first place6, rather than it being unfair to admit a particular piece of evidence (although fortunately for defendants, two bites of the cherry are permitted, in that a failure to establish an abuse of process does not preclude the evidence later being excluded under s78 PACE).

The test for whether particular course of action amounts to entrapment can be summarised as:

'whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime... whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime, or luring a person into committing a crime....

...Ultimately the overall consideration is always whether the conduct of the police or other law enforcement agency was so seriously improper as to bring the administration of justice into disrepute.'

Attorney General's Reference (No.3 of 2000) [2001] UKHL 53 paras 23 – 25

As to whether the circumstances created were an 'unexceptional opportunity' which the offender would have taken irrespective of police involvement, or an unlawful creation of a crime by the state, the House of Lords was unwilling to be prescriptive, although identified likely relevant factors such as:

  1. The nature and extent of police participation in the offence (i.e. the balance between passively providing an opportunity and actively encouraging the offence)
  2. The reason for the particular police operation (i.e. why the defendant was targeted for the alleged entrapment)
  3. The nature of the offence (noting that some offences require more 'proactive' techniques to detect than others)
  4. The defendant's criminal record or other evidence of predisposition (although noting that this is unlikely to be relevant unless it can be shown to relate to the likelihood of the defendant currently being involved in the offence under investigation).7

The House of Lords went on to conclude that domestic law in England & Wales concerning entrapment was compatible with the European Court of Human Rights position8 concerning the conflict between 'state induced' offending and the Article 6 ECHR right to a fair trial i.e. that a defendant is not inherently deprived of the right to a fair trial simply because of the involvement of undercover CHIS. Rather, whether the Article 6 right had been infringed depended on an assessment of the defendant, the offence and the extent and reason for the police involvement in the offending. As such, there is only so much judicial guidance available to the investigative authorities as to the kind of conduct which might result in CHIS involvement resulting in a stay of proceedings or exclusion of evidence.

Conclusion

Given the potential consequences of illegal or reckless use of CHIS (be they civilian or undercover), it could be argued that courts have not done enough; that they have shied away from the kind of judgments which might rein in such behaviour. However, this is to impose a duty on the court which belongs to the investigatory authorities and their overseers. To expect the court to impose order on a nebulous regime by means of post-facto judgments is misguided. Rather, it is for the police, with the oversight of the Investigatory Powers Commissioner, to strive to get it right first time, and for the courts only to intervene where the interests of justice demand so.

Investigators may bemoan the lack of firm guidance as to the acceptable use of CHIS, but this is an unfortunate inevitability. Whilst certain prohibitions may seem obvious (no sex, no drugs, no criminality), even the ACPO consultation draft acknowledges there are exceptions to every rule. By and large, the use of informers is an exceptional tactic and so it is only right that the courts are not fettered by pre-existing guidance (which cannot possibly foresee all of the complications arising from the involvement of CHIS) in order to protect defendants from their unjust use.

Footnotes

1 https://www.ipcc.gov.uk/sites/default/files/Documents/investigation_commissioner_reports/FINAL%20Operation%20Kalmia%20Summary%20report4October2017_0.pdf

2 https://www.theguardian.com/uk-news/2015/nov/20/met-police-apologise-women-had-relationships-with-undercover-officers

3 https://www.app.college.police.uk/wp-content/uploads/2015/08/Code-of-Conduct-for-UCs-070815.pdf

4 [4] https://www.app.college.police.uk/wp-content/uploads/2016/06/UCAPP_consultation-draft-CLOSED.pdf

5 See for example R v Harmes [2006] EWCA Crim 928 where 'serious breaches' of the RIPA and the Code of Practice were insufficient to amount to an abuse of process.

6 See Attorney General's Reference (No.3 of 2000) [2001] UKHL 53 at para 16

7 See See Attorney General's Reference (No.3 of 2000) [2001] UKHL 53 t paras 50 – 71. See also R v Moore (Mia) [2013] EWCA Crim 85 for a more recent application and development of the test.

8 See Teixeira de Castro v Portugal (1999) 28 E.H.R.R. 101

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Emails

From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.