Licence to kill – will undercover criminal activity be lawful for all purposes?

Licence to kill – will undercover criminal activity be lawful for all purposes?

The Covert Human Intelligence Sources (Criminal Conduct) Bill (‘the Bill’)[1] is making its way through Parliament and is currently at the Report Stage of the House of Lords.[2] If enacted, the Bill will provide the statutory framework for certain public authorities to a) authorise a Covert Human Intelligence Source (‘CHIS’) and b) authorise a CHIS to commit what would otherwise be criminal conduct. Owing to its potential scope, the Bill has come under fire from several political parties and campaign groups, which described the Bill as ‘a licence for government agencies to authorise torture and murder.’[3] The Government meanwhile has stated that a ‘CHIS will never be given unlimited authority to commit any and all crimes.’[4] So why is this happening now and what does this mean?

Background to the Bill

The Bill would appear to flow from the December 2019 judgment of the Investigatory Powers Tribunal (‘IPT’) in the case of Privacy International v Secretary of State for the FCO.[5] In summary, that case concerns the Security Service’s authority under the Security Services Guidelines, to authorise otherwise criminal conduct by its officers and agents.[6] Importantly, for the Bill’s purposes, the Privacy International judgment (which ruled in favour of the Secretary of State) stated that the Regulation of Investigatory Powers Act 2000 (‘RIPA’) does not provide general protection for officers of the Security Service or its agents from the legal consequences of participation by the agent in criminality.[7] It follows, therefore, that RIPA offers no protection to anyone for purposes other than those specifically authorised therein.

Considering the current zeitgeist for transparency and accountability, not to mention the ongoing Undercover Policing Inquiry, it is perhaps unsurprising that the Government is eager to place this complicated area of law enforcement on a statutory footing.

What is a CHIS?

A CHIS is a person who establishes or maintains a personal or other relationship with another person for the covert purpose of facilitating, obtaining, disclosing or accessing information.[8] This would include an informant in a drug smuggling operation. The position for an undercover operative (‘UCO’), however, is different. UCOs are defined as a ‘relevant source’ under separate legislation, although this separate legislation does itself define ‘source’ as a CHIS.[9] Either way, a relevant source is a source holding an office, rank or position with the public authorities listed in that legislation (e.g. a UK Police Force).[10] The use of CHISs is widespread and, according to the Government, CHIS operations by the Metropolitan Police have led to 3500 arrests, the recovery of over 100 firearms and 400 other weapons, the seizure of over 400 kg of Class A drugs and over £2.5m cash in the last year alone.[11]

By carrying out criminal conduct, are CHISs currently acting unlawfully?

The Government does not deny that CHISs operating up and down the country engage in activity that would otherwise be criminal. Indeed, to effectively gather intelligence, CHISs must routinely earn trust and prove themselves. This may take the form of possessing or supplying controlled drugs or joining a ‘proscribed organisation’ under the Terrorism Act 2000. However, whilst the current framework under Part II of RIPA provides the authority to authorise a CHIS, the same provisions do not explicitly provide a CHIS with the authority to carry out criminal conduct. Presently, where a CHIS carries out criminal conduct, nothing in RIPA makes that criminal conduct lawful.[12] Instead, provided the criminal conduct is justifiable in the context of a RIPA authorisation, a CHIS would not be prosecuted because to do so would not be in the public interest. It is, however, the lack of an explicit legislative framework governing such conduct that the Bill aims to address.

What does the Bill do?

The Bill will insert a new section 29B into Part II of RIPA, creating a Criminal Conduct Authorisation (‘CCA’). The Bill will also amend the definition of conduct to include ‘criminal conduct in the course of, or otherwise in connection with, the conduct of a CHIS’.[13] The Bill will also redefine criminal conduct as ‘any conduct that (disregarding Part II) would constitute crime…’[14]

What is a Criminal Conduct Authorisation and how is it granted?

A CCA is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a CHIS. A CCA may only be granted if a ‘designated person’ believes that the authorisation is necessary:

  1. in the interests of national security,
  2. for the purpose of preventing or detecting crime or public disorder,
  3. or in the interests of the economic well-being of the UK.

The designated person must also be satisfied that the authorised conduct is proportionate to what is sought to be achieved by the conduct. That assessment of proportionality must consider whether the same result could be achieved without engaging in criminal conduct.

Importantly, for the concerns raised by human rights groups and others, the proportionality assessment must also take into account other matters so far as they are relevant. This includes, as per the proposed s.29B(7) of RIPA, the Human Rights Act 1998 (HRA). That the right to life and the right not to be tortured are absolute rights under the HRA, taking into account those ‘other matters’ would likely remove the possibility that a CHIS would be licenced to kill.

In terms of additional safeguards, all investigatory powers are overseen by the independent Investigatory Powers Commissioner who monitors the use of these powers through inspections and publishes an annual report on their use. Further, the IPT will continue to have jurisdiction to investigate and determine complaints against public authorities’ use of this power.

Is there a limit to who can authorise a CHIS and a CCA?

Under the amended s.30 of RIPA, a CCA may only be authorised by a designated person, that is a person holding such office, rank or position with a relevant public authority as set out in the amended Schedule 1 to RIPA. These authorities include the NCA, SFO, MOJ, any police force and any of the intelligence services. Importantly, whilst certain authorities may authorise a CHIS, that does not mean that they may authorise a CCA. Examples of these authorities include the Charity Commission and local authorities generally, which will not have the power to authorise a CCA.

What next?

So, is any undercover activity, even if authorised, lawful for all purposes? The answer is no. The proposed amendments to s.29 of RIPA make it clear that any crime committed by a CHIS unless authorised by a CCA will be unauthorised, and therefore unlawful. Whilst it is true that the Bill authorises as lawful for all purposes activity which would otherwise be unlawful, it only does so insofar as it is necessary and proportionate, and certainly stops short of the horror show, feared by some, of state sanctioned torture and killing. However, whether the Bill is amended to make these points explicit remains to be seen.

Andrew Watson

[1]   The Bill

[2]   UK Parliament Website

[3]   Amnesty International press release

[4]   UK Government Factsheet to the Bill

[5]   Privacy International and others v Secretory of State for Foreign and Commonwealth Affairs and others [2019]      UKIPTrib IPT_17_186_CH – presently subject to appeal

[6]   Redacted Security Service Guidelines 2011

[7]   See paragraph 125 of the Privacy International judgment

[8]   See section 26(8) of RIPA for full wording

[9]   Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013

[10] Relevant sources have enhanced authorisation arrangements. For example, the person who authorises a    relevant source, for example an undercover police officer, must notify a Judicial Commissioner as per Art.4 Relevant Sources Order 2013. Notwithstanding these arrangements, all CHISs (and by definition all relevant sources) must abide by the CHIS Code of Practice August 2018. For further information, see the College of Policing’s Authorised Undercover Professional Practice October 2020

[11]   UK Government Factsheet to the Bill

[12]   RIPA authorisations are for narrow defined purposes, e.g. the obtaining and disclosure of information derived  from a personal or other relationship.

[13]   Proposed section 26(1)(d) RIPA

[14]   Proposed section 26(8A) RIPA

Andrew Watson is a legal assistant with experience in many aspects of financial crime and regulatory law. He has recently been involved in several cases involving the CPS, FCA, SFO and HMRC and has particular experience in the Account Freezing/Forfeiture Order regime under POCA 2002. He also has experience in data protection law, cybercrime, and the law governing investigatory powers.