Gillespie, 'The Legal Use of Participating Informers'

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The Legal Use of Participating Informers

Alisdair A. Gillespie

Summary

The Regulation of Investigatory Powers Act 2000 does, for the first time, place the use of informers and other undercover agents onto a statutory basis. This is required to help meet the challenges of the Human Rights Act 1998. However the Act and its Codes are not particularly forthcoming when it comes to the use of participating informers, those informers who are allowed to become involved with crime in order to provide information for the police. The dangers of these types of operations are reasonably well documented and this note seeks to explore whether their use is still permitted in the Human Rights era.

Introduction

Law enforcement agencies have used informers in the fight against crime since time immemorial⁽¹⁾ but Rose sums up the difficulty of the use of sources when he says "it is axiomatic that in order to be effective, informants will not be model citizens." (Rose (1996) p.192) Many sources are far from model citizens, indeed they are criminals and in some situations they are permitted to participate in a crime and these sources attract the label "participating informers." This note seeks to explore the legal implication of the use of such informers.

Legality of using a Source

Traditionally there has been no statutory authorisation for the use of an informer, it was just an accepted practice to use them. This could have caused problems in the human rights era because the use of an informer could breach Article 8(1) of the European Convention of Human Rights (ECHR) in that they are invariably tasked to gather private or personal information. To prevent a breach, the public authority⁽²⁾ must show that they come within Article 8(2). This requires the police to show legality, legitimate aim, necessity and proportionality. The European Court of Human Rights (ECtHR) has, however, always said that legality means more than something being simply not illegal⁽³⁾ but requires a clear legal basis.⁽⁴⁾

In response to this the government enacted the Regulation of Investigatory Powers Act 2000 (RIPA).⁽⁵⁾ The Act had a difficult and controversial passage through Parliament yet the use of informers passed by almost unscrutinised, and participating informers were barely considered.⁽⁶⁾ This is all the more remarkable when one remembers the fiasco that the "supergrass" trials in the 1980s caused.⁽⁷⁾ It was not just supergrass operations which were controversial though as many "normal" operations were similarly discredited.⁽⁸⁾

Section 29(1) of RIPA, when read in conjunction with s.26(8), authorises an officer to use a covert human intelligence source (CHIS) under certain circumstances. It is worth noting at the outset the new language as RIPA does not deal with just informers but with sources and this includes undercover officers too.⁽⁹⁾ According to the Act a source is someone who:

An informer would fall within this definition almost automatically. The requirement for a relationship would help exclude citizens who provide information to the police without the wish for reward or without being tasked to provide any information. Before granting authority to use a source, the authorising officer⁽¹¹⁾ must be satisfied that it is necessary to use this source for a proper purpose,⁽¹²⁾ that the use of a source is proportionate to that purpose⁽¹³⁾ and that certain internal procedural requirements have been satisfied.⁽¹⁴⁾

The Act does not differentiate between the different types of sources although the Code of Practice⁽¹⁵⁾ to some degree does. A significant part of the Code deals with setting out special rules in relation to confidential information, vulnerable sources and juvenile sources.⁽¹⁶⁾ However RIPA barely mentions participating informers other than a small paragraph in the draft code:

A source may, in the context of an authorised operation, infiltrate existing criminal activity, or be a party to the commission of criminal offences, within the limits recognised by law. A source who acts beyond these limits will be at risk of prosecution. The need to protect the source cannot alter this principle.⁽¹⁷⁾

The final sentence has probably been added as a result of the problems encountered in the 1980s and 1990s where sources were given almost total immunity in order to protect them.⁽¹⁸⁾ This resulted in fierce criticism from the judiciary and this paragraph perhaps recognises this. Of more interest is the reference to the "limits recognised by law" as this is of uncertain meaning. What is the legality of the use of an informer?

Apart from those few lines the Act and Code makes no reference to participating informers. Some have hypothesised that this is because Parliament did not want to condone crime but that is unclear. Given that other types of sources have their own authorisation procedures set out in the Code⁽¹⁹⁾ it may be thought that not expressly including participating informants in the Code is a significant omission. By omitting to mention participating informants, it could be construed that the rules governing their use are no different to normal sources. This would be a considerable change from the previous regime when special rules as to the use of participating informers existed.⁽²⁰⁾

But does the omission bring the legality into question? Now the Human Rights Act 1998 is in force, we must look to the Strasbourg definition of what law is. One of the leading cases in this area is Malone v United Kingdom (1984) 7 EHRR 14 which related to a telephone tap being used by the police to gather information in relation to a prosecution. Malone petitioned the ECtHR alleging that this was a breach of Article 8. The government sought to rely on Article 8(2) but failed because there was no legal basis. The same result occurred in Halford v United Kingdom (1998) 24 EHRR 523 when it was admitted that the tapping of an office telephone was outside the remit of the Interception of Communications Act 1985 (which was enacted in response to the decision in Malone) However the same result may not necessarily arise in relation to participating informants because there is some kind of statutory basis – s.29 – but is a vague authority good enough for a legal basis?

[T]he phrase "in accordance with the law" not only requires compliance with domestic law but relates to the quality of that law... the law must be sufficiently clear in its terms to give individuals an adequate indication as to the circumstances in which and the conditions on which public authorities are entitled to resort to such covert measures. (para 26)

...whilst the police are entitled to make use of information concerning an offence already laid on and while... it may be proper for the police to encourage the informer to take part in the offence... the police must never use an informer to encourage another to commit an offence which he would not otherwise commit.

This was reiterated in R v Ameer and Lucas [1977] Crim LR 104, CA where the Court of Appeal said that issues such as the level of participation and the fact that it had been authorised at a senior level were all factors to be considered. However neither of these cases set out the circumstances and conditions which apply to the use of an informer, they only make the point that the use can be permitted. Some details are set out in Home Office Circular 97/1969 but neither Strasbourg nor domestic courts have been particularly impressed by the status of Home Office Circulars, not least because they are not binding.⁽²¹⁾ The old Manual of Standards set out the rules relating to participating informers, and a new draft has been written, but because they are classified as restricted access it is unlikely that they would provide sufficient clarity and forseeability for the quality of law to be acceptable under Article 8(2). Of course that is not to say that every detail of the use of a participating informer should be released. There will be many technicalities which need to remain classified, but issues such as the authorisation period and broad indications as to the limits in which they can operate should be contained within the Code of Practice.

Even if, however, the combination of statute, Code and Home Office Circulars provide sufficient clarity to bring the matter within the “quality of law” test, there is one other hurdle which may be more difficult to clear. In Teixera de Castro v Portugal (1999) 28 EHRR 101 the ECtHR was asked to examine a case involving undercover agents. It should be noted from the outset that the agents in Teixera de Castro were police officers, but there is, it is submitted, no reason why this difference should not be of relevance to participating sources. One of the matters that the ECtHR considered to be vital was the oversight of the source. In Teixera de Castro an investigating judge had given authority to use the undercover agent, and he remained in general oversight in relation to the use of the agent.⁽²²⁾ A similar statement had been made in the earlier case of Lüdi v Switzerland (1992) 15 EHRR 173 where the fact that the investigating magistrate had given authority for the use of an undercover agent was considered to be an important safeguard for Article 8.⁽²³⁾

However within the English system of criminal justice there is no such thing as an investigating magistrate. RIPA does, admittedly, set up a system of oversight through the use of commissioners⁽²⁴⁾ who hold high judicial office.⁽²⁵⁾ However the oversight that the commissioners undertake is retrospective rather than concurrent, there is neither a duty nor an ascertainable statutory mechanism by which the police could seek prior judicial approval for the use of the source. This can be contrasted with other forms of surveillance, most notably intrusive surveillance⁽²⁶⁾ and property interference.⁽²⁷⁾ It could be argued that participating sources in particular would need the safeguard of judicial oversight, even if this is through the system of commissioners, because it is relatively easy to see the parallel nature of participating sources and undercover agents. If, as the ECtHR appears to suggest, judicial oversight is required for agents then it would appear likely that the same is to be required of participating sources. Indeed one could argue that it is more likely that they would require oversight since agents tend to be law enforcement officers and as such carry a knowledge of the rules of evidence etc. whereas sources do not.

Interestingly, if a court, using its powers under the Human Rights Act 1998, does declare that participating informers require judicial oversight, RIPA appears capable of remedying the situation very quickly. The Home Secretary has reserved the right by order either to prohibit the granting of an authority in relation to certain sources, or place extra restrictions on the granting of authority.⁽²⁸⁾ The Home Secretary could, therefore, enact a statutory instrument which states that before authority is given for the use of a participating informer, a Commissioner must give his approval. In that way a senior judge would have a degree of oversight over the use of the source as renewals etc. would also have to be notified to the Commissioners in the way which already occurs for intrusive surveillance or property interference.

Conclusion

Participating informers have been used for a considerable period of time. The Regulation of Investigatory Powers Act, as drafted, currently poses a threat to their continued use. Whilst the Act itself does not differentiate between the types of sources, the Codes of Practice – which have statutory authority themselves – does. It is to be doubted whether there is sufficient clarity in the current Codes of Practice for them to meet the “quality of law” test inherent in Article 8(2). If that occurs then this would cause significant problems for law enforcement agencies. It is clear that breach of Article 8 will not necessarily amount to a breach of Article 6⁽²⁹⁾ but it would lead to a claim for compensation. Law enforcement agencies cannot afford to pay compensation every time they use a participating source so, in reality, the use of such sources would be curtailed. The Home Office must, if they wish the use of such sources to continue, remedy this situation by providing extra information within Article 8.

However it may not be that simple. The courts, be they domestic or Strasbourg, may decide that judicial oversight of such sources is necessary. This would, arguably, be in line with previous Strasbourg jurisprudence. If this requirement is ordered then the Act already provides the framework to enable the solution, and it will be important that the Home Office plugs this gap quickly to ensure the continued use of such sources is not compromised.

Bibliography

(5) The Act received Royal Assent on 28 July 2000 and Part II (covert surveillance) came into effect on 25th September 2000. (See The Regulation of Investigatory Powers Act 2000 (Commencement No.1 and Transitional Provisions) Order 200. (S.I. 2000/2543)).

(7) Supergrasses were invariably participating informers and were used extensively in terrorist trials. Peter Taylor gives an illuminative potted history of the use of supergrasses, and the reaction of the courts to such methodology (Taylor, P. (1998) Provos: the IRA and Sinn Fein Bloomsbury. London. pp.254-265) as does Steven Greer. (Greer, S. (1995) Supergrasses: A Study in Anti-Terrorist Law Enforcement in Northern Ireland. Clarendon Press. London)

(9) It is less clear what the position is in relation to test purchasers. Chalmers (Chalmers, J. 'Test Purchasing, Entrapment and Human Rights' (2000) 150 NLJ 1444) makes no reference to RIPA in his analysis of how Article 8 could affect test purchases, but this could be because of the type of test purchasing cases he is dealing with. Chalmers is discussing retail test purchases (tobacco, alcohol etc.) and the test for whether a matter comes within RIPA is whether it gathers personal or private information. It is unlikely that retail test purchasing operations would do so, although test purchasers of guns, firearms etc. may.

(12) That being the prevention or detection of crime or disorder, in the interests of national security or public safety, the protection of public health, the economic well being of the country, assessing/collecting government duties and any other purpose prescribed by the Secretary of State. See RIPA 2000, ss.29(2)(a) and 29(3).

(14) RIPA 2000, s.29(2)(c) in conjunction with s.29(5). The internal safeguards are matters such as setting up the triad of supervisory officers (a “handler” who is in day-to-day control of the Source, the “controller” who has management responsibility for the handlers and for keeping the risk-assessment up to date of the source, and the “registrar” who has management responsibility for keeping the records of the source up to date and who is usually also the authorising officer), undertaking risk assessment and issues surrounding the security of the data held on the source.

(15) There are currently two draft codes of practice in existence. The first looks at Directed and Intrusive Surveillance, and the second looks at Covert Human Intelligence Sources. The Codes have statutory authority (s.71 of the Act) and whilst they are currently on in draft, they must still be referred to because Part II is now in force (n (1) above). The draft Codes are only available on the internet. <http://www.homeoffice.gov.uk/ripa/ripact.htm>.

(20) Under the previous regime the majority of rules governing authorisations etc. were contained in the Association of Chief Police Officers (ACPO) Manual of Standards. This was a classified document which was not available to members of the public. However it was known that authorisation of a participating informer needed to be undertaken by an officer of at least Assistant Chief Constable rank.

(26) Which is also a part II RIPA matter. Under ss.35 and 36, a Commissioner must be notified, and approve, any granting or canceling of authority in relation to intrusive surveillance. Note when an operation is urgent then technically prior notification is not required because RIPA provides that in those circumstances the operation can begin before the result of notification is received. (s.36(3), RIPA) However the Code for intrusive surveillance states that in these circumstances the Commissioner should, along with considering whether to grant authority, consider whether the operation was urgent. (see para 4.19 of the Surveillance Code). Given that the commissioners have fax machines – and could thus turn around an application very quickly – it is submitted that it would be comparatively rare for the use of these powers to be justified. It should also be noted that if the powers are used in an inappropriate way, the Commissioners have substantial powers, including the ability to quash the authority. (See para 4.19 of the Surveillance Code).

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