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The Covert Human Intelligence Sources (Criminal Conduct) Bill 2020

Thursday 8 October 2020

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Introduction

The Government recently submitted the Covert Human Intelligence Sources (Criminal Conduct) Bill to Parliament. This Bill seeks to put the ability of undercover operatives to commit criminal offences in the course of their deployment on a statutory footing. It will be achieved by amending the Regulation of Investigatory Powers Act 2000 (RIPA) to allow a diverse range of state agencies to authorise their Covert Human Intelligence Source (CHIS) to commit criminal offences where necessary for protecting national security, preventing or detecting crime or disorder, or protecting the economic wellbeing of the UK. This will have the effect of making such activity “lawful for all purposes”, which, without providing so explicitly, effectively means full civil and criminal immunity for those who act within the terms of the authorisation.

Background to the Bill

There is of course nothing new about the use of CHIS by law enforcement agencies, which has been regulated by s.29 of RIPA since its enactment. It is also a matter of record that the Security Services have long used covert agents as part of their domestic operations, which has often involved those agents engaging in criminal activity. The use of agents and informants in proscribed terrorist organisations such as the IRA and Loyalist groups during the Troubles are an obvious example. Simply by being members of such groups those agents were committing an offence, but history shows that involvement often went well beyond simple membership - see for example the tragic case of Pat Finucane the solicitor murdered in front of his children by loyalist paramilitaries with the collusion of the Security Services. There are also numerous examples where the use of such operatives and their participation in crime have been essential to disrupt potentially deadly plots or violent criminal activity.

For some time, those acting for the foreign branch of our Intelligence Service (MI6) have been permitted by statute to commit criminal offences in the course of their operations on foreign soil (s.7 Intelligence Services Act 1994). The CHIS Bill, however, is the first time that legislation has been drafted to allow offences to be committed in the UK. Perhaps more importantly, the Bill allows for authorisation of such activity, not just for those working for MI5 seeking to disrupt terrorist activity but, as alluded to earlier, for a very wide array of state agencies engaged in law enforcement activity. The National Crime Agency (NCA) and the Serious Fraud Office may seem like the more obvious users of such techniques, but the Home Office, Department of Health and Social Care and Food Standards Agency may not. Yet all these agencies and more will now have explicit authority to allow their CHIS to commit criminal offences “In the course of, or otherwise in connection with, the conduct of a covert human intelligence source” (s.8(a) CHIS Bill).

A number of pertinent questions are raised by this new legislation, but first, the motivation for its introduction needs to be touched upon. The principal reason that the Government seeks to enact this legislation is a ground-breaking case before the Investigatory Powers Tribunal (IPT) last year. In Privacy International & Ors v Foreign & Commonwealth Office [2019] UKIPTrib IPT_17_186_CH the claimants (a group of NGOs) challenged the lawfulness of a policy (‘The Third Direction’) written by the Prime Minister that permitted MI5 to authorise criminal activity on the part of its covert agents. The existence of that policy had only come to light in separate litigation regarding the bulk collection of personal data. As the name suggests it was the third version of such a policy, having been renewed by Prime Ministers including David Cameron and Theresa May.

It was agreed by all parties to the litigation that RIPA did not cover such activity, therefore the legal basis for it had to be found somewhere else. Ultimately, the IPT held by a majority of 3-2 that the Security Service Act 1989, which placed MI5 on a statutory footing, gave an implied power to authorise its agents to engage in criminal activity in order to carry out its statutory functions, which range from protecting national security to safeguarding the economic well-being of the country as well as supporting law enforcement agencies in the prevention and detection of serious crime. The core of this reasoning was essentially that s.1 (1) of the 1989 Act says there shall “continue” to be a Security Service. Therefore, in view of the fact it was well known by Parliament that the Security Service ran covert agents amongst terrorist groups, it must be taken to have intended that such activity be allowed to continue. Further, on the basis of the public law principle that provides public authorities with implied powers necessary for them to carry out their primary statutory functions, there must be a power to authorise agents to engage in criminal activity in the way they had been.

The reasoning of the majority raises a number of issues that are beyond the scope of this piece. However, as is plain from the fact it was decided on a 3-2 majority, it is not a certainty that it will survive an appeal. The judgment also touched upon the fact that there have been calls over the years for such controversial activity to be explicitly governed by statute, not least so that those undertaking it can know where they stand. So, it emerges that the idea behind the Bill is a sensible one, but the breadth of its application and the inbuilt safeguards should be properly scrutinised.

Safeguards and Human Rights

Legal commentators in the Twittersphere and elsewhere have rightly pointed out that in going beyond the traditional agencies that investigate the most serious criminal activity such as the Security Service, NCA and some sections of the police force, the Bill is assuming the same level of institutional capability and safeguards for a much wider set of actors. Agencies with years of experience of running undercover agents are by no means immune to making errors, but those whose primary functions are entirely different are likely to have far less experience and robust procedures to handle such activity.

The Bill does not define or limit what types of criminal offences might be authorised by the relevant agency. This means that in theory, for example, violent or sexual crimes may be subject to authorisation. The Home Office explanatory briefing note that accompanies the Bill states that this is not a problem. First, it is said it would be dangerous to specify prohibited crimes as it might encourage those being infiltrated to force a suspected agent to commit one of them in order to expose him or her and; secondly, that any agency authorising criminal activity remains bound by s.6 of the Human Rights Act (HRA) and so cannot act in a way that is incompatible with the rights contained within it.

There are inherent difficulties with such arguments. In Canada, for example, the list of crimes that a CHIS cannot be authorised to commit is set out in statute and includes murder, torture and sexual offences. Presumably criminals in Canada are as likely to employ the same methods the Home office fears, yet the legislature there felt it necessary to be clear about what can and cannot be done in the pursuit of evidence gathering or crime prevention. Further, the implication is that no agent could infringe one of the unqualified rights protected under the HRA, such as the right to life or the right to freedom from torture, inhuman or degrading treatment. On that basis homicide or violence against the person would be prohibited. If that is so then why not say so explicitly? Surely if the criminals in question are savvy enough to read the legislation as the Home Office suggests then they will be astute enough to recognise the limitations this Bill apparently places on the activity of a CHIS. In any event, as former DPP, Ken McDonald pointed out in the Times (5th October 2020) - it is not as if criminal gangs were not already aware that undercover agents won’t kill to order. Setting it out in statute would provide clear limits to this extraordinary power.

The Home Secretary’s assertion that the Human Rights Act will be a sufficient safeguard raises further problems. First, by not defining which crimes may not be authorised each agency is left with a series of potentially very difficult judgments to be made. Surely the rule of law at least demands that decisions to authorise serious criminal activity not be left solely to police officers (or other officials), even if they have attained a particular rank, and certainly not in the huge range of agencies covered by this bill.

Secondly, we only need to look at recent history to see the abuse to which this kind of power is open. The discovery of the ‘Special Demonstration Squad’ (‘SDS’) and its team of undercover officers placed in climate and anti-capitalist activist groups was a shocking revelation into the misuse of State power to monitor those who dare to advocate for a different approach to running our society. But of course, it went beyond mere monitoring or evidence gathering. Identities of dead children were stolen, and female activists tricked into relationships and even having children with officers who, all the while, were living double lives. Years later, after being uncovered by journalists and some of those affected, and the public scandal that followed, some of the victims have received pay outs and the Metropolitan Police has accepted some degree of wrongdoing. However, lives remain shattered and the Inquiry set up to get to the bottom of the activity (the Undercover Policing Inquiry) is mired in delays and extreme restrictions on public disclosure. An attempt by one of those affected to pursue a claim in the IPT moved at a glacial pace and remains subject to the extraordinary rules of secrecy that the Tribunal is required by statute to adhere to. Despite the proposed safeguards in the CHIS Bill this, it should also be remembered, remains the only Tribunal in which any claim that a CHIS has breached a complainant’s human rights can be brought.

Threshold and Oversight

The Bill allows the authorisation of criminal conduct for three reasons including, where “necessary to prevent crime or disorder”. Such a low threshold for authorisation will sound all too familiar to those individuals who suffered at the hands of the SDS. Entirely peaceful activist groups often temporarily create what might be termed as ‘disorder’, but does that justify commission of crimes by state agents as they seek to prevent it? The Bill requires the criminal activity authorised “must be proportionate to the aim to be achieved”, but that proportionality will be determined solely by the authorising officer and their supervisor. Clearly, those operating the SDS thought it a proportionate response. It is hoped the position would be different today but ensuring that depends on robust oversight.

In that regard, the explanatory note trumpets the role of the Investigatory Powers Commissioner (IPC) under s.229 of RIPA in overseeing the grants of this type of authorisation. This is to be welcomed but the IPC’s role extends to having to keep the use of the powers “under review (by way of audit, inspection or investigation)” and in certain circumstances to inform a relevant person if a serious error is uncovered and a public interest test met. Effectively this means that random requests to view a particular agency’s past or present authorisations for criminal activity can be made and an audit carried out. It does not, however, require mandatory referral or for the IPC to pronounce on the legality of such authorisations. Most fundamentally, it does not require any prior judicial authorisation for the use of the powers in the CHIS bill in any circumstances (in contrast to obtaining a warrant to intercept phone calls or search a property).

Where the deployment of a CHIS results in a criminal prosecution there may be a greater prospect of being able to challenge the lawfulness of an authorisation to commit criminal conduct, provided that full disclosure is made to the CPS and defence. In R v Barkshire [2011] EWCA Crim 1185 a group of protestors had their convictions for occupying a  power station quashed after it emerged that an undercover officer had played an instrumental role (beyond the scope of his authorisation) in the operation and had even given evidence at trial without the defence ever being informed of his existence. But discovering such incidents of wrongdoing after the event, sometimes many years after, is unacceptable. Particularly when attempts to gain a public understanding of the extent of any such failings are inevitably met with resistance and secrecy as the experience of the UCPI suggests.

Conclusion

There is ultimately no substitute for oversight that is at least capable of ensuring that unlawful decisions are identified before they cause harm. Nor is there any better means of maintaining public trust and confidence in a system then allowing a robust and open challenge by those wrongly affected by such activity in court. This attempt to legislate for criminal activity carried out by those acting for the state appears to provide neither. None of that is to say these are not important powers for those genuinely trying to prevent serious crime and threats to the nation. Clearly the utility of informants and undercover operatives cannot be underestimated, but this Bill does not suggest that historical failures of law enforcement agencies to police themselves have been taken into consideration.

Jacob Bindman, Barrister, Garden Court Chambers 
06.10.2020
                                                                                                                       

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