Human Intelligence And Police Informers Separating Law From Operational Strategy
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...
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