31-Dec-20 Criminal Conduct Authorisations

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On 24 September 2020, the Government introduced the Covert Human Intelligence Sources (Criminal Conduct) Bill 2019-21. The Government explained the Bill rationale as follows:

Undercover operatives and agents play a crucial role in preventing and safeguarding victims from the most serious crimes, including terrorism and child sexual abuse. In order to gain the trust of those under investigation, there are occasions where they need to participate in criminality themselves. This is a longstanding capability which remains critical for national security.

The Covert Human Intelligence Sources (CHIS) Bill provides a clear and consistent statutory basis for a limited number of public authorities to continue to authorise participation in criminality, in carefully managed circumstances.

The publication on 24 September 2020 was the ‘first reading‘ and is simply the Bill being published as a House of Commons paper for the first time. The Bill completed its passage through the Commons on 15 October 2020 and had its second reading on 11 November 2020. The second reading is the opportunity for MPs to debate the general principles and themes of the Bill. The Bill then moves to Committee stage, where detailed examination takes place. Committee stage for the Covert Human Intelligence Sources (Criminal Conduct) Bill (referred to here going forward as CHIS) began at the end of November with latest amendments tabled on 11 December 2020.

The notes to the Bill make clear that participation in criminal activity by police, MI5 agents and others “is not new activity”. Rather the aim of CHIS is to put “existing practice on a clear and consistent statutory footing […] It is a continuation of existing practice that is currently authorised using a variety of legal bases”. The concern is therefore not whether criminal participation is appropriate in principle – this seems accepted – but how it should be authorised and what the boundaries of that criminality should be.

In popular culture, our common (albeit fictitious) reference point for British agents involved in nefarious activity abroad is Fleming’s James Bond. James Bond worked for the Secret Intelligence Service (MI6), the government agency charged with protecting the UK from overseas threats. A Guardian article published 15 December 2020 reveals that an MI6 agent had likely breached ‘red lines’ in the field, despite warning. Only after this was flagged by the Investigatory Powers Commissioner’s Office (IPCO) in their 2019 report, did MI6 update the Foreign Office. MI6 can seek authorisation for an agent’s activities under section 7 of the Intelligence Services Act. This section allows British agents operating abroad to break any law without fear of prosecution in the UK if they have the written permission of the foreign secretary of the day (Guardian, 15 Dec 2020). CHIS focuses on UK-based activity.

Under CHIS, the details of which crimes are authorised would not be made public, to protect the undercover officer, and a senior judge would report on how the power is used, with no role for the Crown Prosecution Service. The intelligence agencies, NCA, police, HMRC, HM Forces and ten other public authorities would be able to authorise criminal conduct in the UK. Agents would be required to do only what is necessary and proportionate and not to breach the Human Rights Act 1998 (HRA), which mandates the government to protect life.

Some MPs and human rights organisations, such as Reprieve, would like the government to explicitly state that killing and torture cannot be subject to Criminal Conduct Authorisation (though in principle, that should be covered by the Government’s HRA obligations). However, it is not clear why these acts have been singled out from others: the authorisation of rape, sexual abuse and grievous bodily harm (other than through torture) would also be reprehensible.

Indeed, in the Lords debate on the Bill on 10 December 2020, the scenario of an undercover police officer working as part of a county lines gang is discussed. In the example given, the officer is asked to stab a teenage gang member as a punishment for gang indiscipline. If the officer does not do it, their cover may be blown and their life in danger. For this reason, former front-line detective Lord Davies of Gower proposes that authorisation after the criminal act may, in certain circumstances, be appropriate, since it is not always possible to predict the situations in which an agent may find themselves. Other peers express misgivings about post hoc authorisation. Lord Kennedy of Southwark, for example, argues:

While I share the sentiment that we would not want undercover operatives to be placed in difficult positions simply for acting in the public interest, none the less, one of the key components in the present arrangement is control. The authorising officer must have confidence that proper thought has been given to the consequences of the authorisation, and we do not believe that an after-the-fact analysis, when the activities were not under the control of the public authority, should be retrospectively authorised where an authorisation has such an important legal effect (Vol. 808, Col. 1356).

The CHIS debate raises important questions about undercover work more broadly – the harms related to organised crime or surveillance activity subjects, including victims and low-level perpetrators, as well as to the individual officer. How do we weigh these against the collection of evidence which may prevent future harm?

The Undercover Policing Inquiry, announced by the then Prime Minister Theresa May in 2015, was established to investigate:

  • Module One: Examination of the deployment of undercover officers in the past, their conduct, and the impact of their activities on themselves and others.
  • Module Two: Examination of the management and oversight of undercover officers, including their selection, training, supervision, care after the end of an undercover deployment, and the legal and regulatory framework within which undercover policing was carried out.
  • Module Three: Examination of current undercover policing practices and of how undercover policing should be conducted in future. (Source: ucpi.org.uk)

Unfortunately, dates are still to be announced for Module Three, an element of the Inquiry that could have directly informed CHIS.

The Undercover Policing Inquiry was established to investigate policing practice in England and Wales from 1968. Of particular public concern were the activities of the Metropolitan Police’s Special Demonstration Squad (SDS), which was involved in monitoring mainly left-wing political groups and causes. Some officers were involved in long-term relationships with around 30 women as part of their cover. Undercover officer Bob Lambert, fathered a child with his partner, an animal rights campaigner, before disappearing when his deployment ended (BBC, November 2020). 

Police identify undercover work as essential to fighting crime, yet the harms – experienced and perpetrated – by undercover work are wide-ranging, particularly for those who are ‘undercover advance operatives‘. These are individuals who are “trained to undertake deployments involving higher-level infiltrations and [who] must be able to withstand intense scrutiny from anyone who may be suspicious” (College of Policing, 2016).

It is hard to imagine the psychological toll of lived deception, committing acts alien to one’s conscience, and the constant risk of exposure and resultant harm, perhaps death. More worrying perhaps, if these experiences have no emotional impact.

We ask much of those employed to keep us safe – police, army, intelligence operatives, private security or detection – but strong oversight should ensure their safety and the safety of others. Since the information on specific cases is so often redacted or learnt piecemeal through the media, it is difficult for the public and politicians to understand exactly the possible scenarios and assess the benefits and risks of undercover work. In addition, the picture is fast-moving, with past evidence becoming obsolete as technology, context, threats and modus operandi change.

Rather than focus on criminal conduct authorisations in isolation, the public and those employed undercover deserve a more expansive and transparent framework for covert operations, including mechanisms for scrutiny, lesson-learning, redress and long-term support, where required. Too often, ‘national security’ or ‘threat to life’ are a convenient roadblock. If the Government (or private companies) cannot define the harms and benefits of undercover work, or cannot establish some key public principles, or cannot acknowledge that accountability for harm resides with the employer, not the employee, then they should not be placing agents in the field.

© Natasha Mulvihill and Criminology Tales, 2020. 

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