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:
- The use is necessary on one of the prescribed grounds (e.g. national security, assessing or collecting tax, prevention or detection of crime);
- The use is proportionate to the objective (i.e. what might be achieved by the exercise); and
- 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.:
- 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  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.
- 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.)
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 scandals 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 website 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 2016. 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. 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 place, 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)  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:
- The nature and extent of police participation in the offence (i.e. the balance between passively providing an opportunity and actively encouraging the offence)
- The reason for the particular police operation (i.e. why the defendant was targeted for the alleged entrapment)
- The nature of the offence (noting that some offences require more ‘proactive’ techniques to detect than others)
- 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). 
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 position 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.
 See for example R v Harmes  EWCA Crim 928 where ‘serious breaches’ of the RIPA and the Code of Practice were insufficient to amount to an abuse of process.
 See Attorney General’s Reference (No.3 of 2000)  UKHL 53 at para 16
 See See Attorney General’s Reference (No.3 of 2000)  UKHL 53 t paras 50 – 71. See also R v Moore (Mia)  EWCA Crim 85 for a more recent application and development of the test.
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