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.


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.


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.





4 [4]

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

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

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions