Licence To Kill ' Will Undercover Criminal Activity Be Lawful For All Purposes?

• Published date: 18 January 2021
• Law Firm: BCL Solicitors LLP
• Author: Mr Andrew Watson

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...