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12/03/2021

Richard Furlong considers the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 and looks at its possible effects on admissibility and abuse of process arguments.


Notwithstanding widespread extra-Parliamentary opposition, the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (“the Act”) received royal assent on 1 March 2021. No date has yet been set for the coming into force of its provisions, which are not free-standing, but its 10 sections and 2 schedules amend the Regulation of Investigatory Powers Act 2000 (RIPA), and the Investigatory Powers Act 2016 (IPA).

What the Act does, and to whom the powers are given

The investigatory powers framework is amended by the provision of specific powers to authorise criminal conduct by covert human intelligence sources (‘CHIS’), where the person authorising it believes (the word ‘reasonably’ is missing from the statute) it to be both proportionate and necessary, in the words of the new section 29B of RIPA:

“(a)      in the interests of national security,

(b)        for the purpose of preventing or detecting crime, or of preventing disorder; or

(c)        in the interests of the economic well-being of the United Kingdom.”

The authorisation is also required to be in line with ‘arrangements’ yet to be issued by the Secretary of State. However, a draft CHIS Code of Practice was published in January 2021, which incorporates criminal conduct authorisations and practitioners will be well-advised to familiarise themselves with this document (see below) and its inevitable successor.

By virtue of a new section 32C of RIPA, all authorisations must be notified as soon as reasonably practicable and in any event within 7 days to a Judicial Commissioner, defined in section 227 of IPA and section 60 of the Constitutional Reform Act 2005 as being someone at the judicial level of the High Court or above, appointed by the Prime Minister on the joint recommendation of the Lord Chancellor, the Lord Chief Justice, the Lord President of the Court of Session, the Lord Chief Justice of Northern Ireland, and the Investigatory Powers Commissioner.

A relatively wide range of law enforcement bodies have been given powers in relation to criminal conduct authorisation. The police, NCA, SFO, intelligence services, armed forces and HMRC obviously have them.

Of those government departments with existing powers under RIPA, only the Department of Health and Social Care, the Home Office and the Ministry of Justice have been given criminal conduct authorisation powers. The Welsh Assembly government, local authorities (i.e. trading standards) and fire and rescue authorities do not have them, but of the list of other bodies, the Competition and Markets Authority, Environment Agency, Financial Conduct Authority, Food Standards Agency and Gambling Commission have all been granted these powers.

Importantly, by virtue of section 27 of RIPA, authorised criminal conduct is lawful and attracts neither civil nor criminal liability.

Particular safeguards exist in respect of young people, where a particular juvenile criminal conduct authorisation is required. In such a case, under the new section 29C(3)(a) of RIPA, In addition to satisfying the requirements of section 29B, a person may grant a juvenile criminal conduct authorisation only if—

(a)  the person has considered the results of an appropriate risk assessment;

(b)  there are exceptional circumstances such that—

(i)         it is not reasonably foreseeable in the circumstances as the person believes them to be that any harm to the juvenile source would result from the grant of the authorisation, and

(ii)        the person believes the authorisation would be compatible with the need to safeguard and promote the best interests of the juvenile source; and

(c)  the person believes that appropriate arrangements for meetings are in force.

Risk assessments are also required in the cases of vulnerable adult sources. Vulnerable adult sources are “individuals who by reason of mental disorder or vulnerability, disability, age or illness, are or may be unable to take care of themselves or to protect themselves against significant harm or exploitation”.

The person making the authorisation under the new section 29D(4)(b) and (c) must believe that the risks of harm identified by that risk assessment have been properly explained to and understood by the vulnerable adult source; and have taken into account the need to safeguard and promote the best interests of the vulnerable adult source.

The background to the legislation

The Investigatory Powers Tribunal decision in Privacy International & others v Secretary of State for Foreign and Commonwealth Affairs & others [2019] UKIPTrib IPT_17_186_CH resulted from a challenge to the lawfulness of the so-called “Third Direction”, a confidential direction issued by the Prime Minister to the Intelligence Services Commissioner in 2014, which, following the IPA, became the Investigatory Powers Commissioner (Additional Directed Oversight Functions) (Security Service’s Agent Participation in Criminality) Direction 2017.

The Third Direction required the Investigatory Powers Commissioner to keep under review the Security Service (MI5) guidelines on the use of agents who participate in criminality and the authorisations issued in accordance with them.

Those guidelines provided for a procedure whereby criminal conduct could be authorised by an appropriate officer within MI5, subject to the understanding that the criminal conduct could not provide immunity from prosecution but offered only an explanation and justification of the decisions taken by the service.

By a 3-2 majority, the Tribunal held that MI5 had an implied public law power under the Security Service Act 1989 to authorise agents to engage in criminality (e.g. professing membership of a proscribed organisation), and that the independent prosecuting authorities were entitled to accept or reject any MI5 authorisation, on the basis of their own assessment of the public interest.

The effects of the new provisions on subsequent criminal proceedings

The fact that conduct which would otherwise have been unlawful is now made lawful for all purposes may have consequences for applications in relation to admissibility and abuse of process. The principal issues surrounding the use of participating informants or CHIS involved in criminal conduct whether authorised or not are likely to relate to disclosure and entrapment.

i. Disclosure

Historically, applications for disclosure of the identity of participating informants or CHIS have been made where appropriate on the basis that such a disclosure would assist the defence or undermine the prosecution by showing unlawful conduct on the part of the CHIS and thus giving rise to possible arguments for the exclusion of evidence under section 78 of the Police and Criminal Evidence Act 1984, or the stay of proceedings under the abuse of process doctrine.

Arguments may now turn on a more technical approach to compliance with the final version of the draft CHIS Code of Practice referred to above, as well as the orders made under the Act, notably the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 (the “Relevant Sources Order”), which requires inter alia serving police CHIS authorisations to be granted by someone of a rank no lower than Superintendent, and makes specific provision for long term authorisations to be subject to a requirement that they are approved by an Ordinary Surveillance Commissioner. With non-serving CHIS authorisations, practitioners will also need to seek disclosure of the (suitably redacted) records kept under the Regulation of Investigatory Powers (Source Records) Regulations 2000 (the “Source Records” Regulations) which inter alia should set out tasks and demands made of the source.

The CHIS Code of Practice sets out in some detail the necessary processes in relation to criminal conduct authorisations under the provisions of s29B – D. There will be sensible arguments for disclosure in most cases where the potential exists for entrapment arguments, since there is plainly a justification for the authorisations to be checked and verified so far as possible by an advocate seeking to challenge the consequences of the criminal conduct. Whilst there is an obligation on public authorities to record and report errors, it may not be the case that an error is recognised until the defence draw attention to it in the course of subsequent proceedings.

Defence statements will need to be carefully drafted to trigger proper disclosure requests with one eye to the Code.

ii. Entrapment – exclusion of evidence or abuse of process?

The leading authority on entrapment is Looseley, Att-Gen’s Reference (No. 3 of 2000) [2001] UKHL 53 Looseley highlights the proposition that in fact a degree of police criminality has always been acceptable. Test purchase officers in drugs transactions are not a novelty, and the limits of what is acceptable will continue to be governed by that authority and the wider principles in the old case of Teixeria de Castro v Portugal 28 E.H.R.R. 10.

There may be sensible arguments in criminal conduct authorisation cases against the necessity of the authorisation. If the authorities knew a particular criminal offence was about to be committed, why could the offenders not be arrested for conspiracy before they and the CHIS committed the offence?

As those who have defended in joint enterprise cases will be aware, secondary liability often has aspects of encouragement or indeed incitement embedded in it, and thus entrapment can easily become a live issue where a CHIS with criminal conduct authorisation is involved. It is reasonably foreseeable that a CHIS with such authorisation may stretch beyond the limits of Lord Hoffman’s stricture in Looseley (at §56) that:

“The only proper purpose of police participation is to obtain evidence of criminal acts which they suspect someone is about to commit or in which he is already engaged. It is not to tempt people to commit crimes in order to expose their bad characters and punish them.”

Interestingly, where entrapment does become an issue, it may strengthen abuse arguments and weaken exclusionary arguments. The well-known provisions of section 78 give an exclusionary discretion having regard to all the circumstances, including the circumstances in which the evidence was obtained, where its admission would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

If a criminal conduct authorisation has been approved by a judicial commissioner, who is after all a holder of high judicial office, arguments of unfairness around the circumstances in which the evidence was obtained may start from a weaker position than they did under the old law.

Lord Hoffman justified the exclusionary discretion at §43 of Looseley on the basis that if the court was not satisfied that a stay should be granted and the trial proceeds, the participation of State agents in the commission of the crime may well be relevant to the exercise of the discretion under section 78. That maybe a more subtle argument now, since the State agents themselves may not be criminally liable. The incentive on the part of the CHIS witness to downplay their role will undoubtedly be less if they can hide behind a criminal conduct authorisation, and thus their credibility may benefit.

However, the abuse test from Looseley and subsequent authorities such as Moore [2013] EWCA Crim 85, Palmer [2014] EWCA Crim 1681 and Syed [2018] EWCA Crim 2809 turns on whether a suspect was presented with more than an ‘unexceptional opportunity’ to engage in criminality. Barring very careful conduct, such as that exhibited by the serving MI5 CHIS in Syed, there is plainly much more scope for arguing that the conduct of the officers went beyond the limit authorised.

Conclusions

The assessments highlighted above must be treated with appropriate caution. This is a very new piece of legislation, and the final version of the Code of Conduct has not yet been published. However, the new regime must call for a new approach from defence practitioners, who will need to familiarise themselves with the details of the subordinate legislation as well as the new Code.

Leaving aside the moral outrage at this unattractive piece of legislation, the consequences of which will no doubt follow the usual mission creep familiar to all with a passing acquaintance with new criminal statutes, there is plenty of scope for litigation on the back of it.


Richard Furlong advises frequently on surveillance, CHIS handling and investigatory powers, and has given lectures to the police and other law enforcement agencies on the use of these techniques.

12/03/2021

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