Judgment in the recent case of An Informer v A Chief Constable [2012] EWCA Civ 197 appears to have been published with relatively little controversy. This is surprising, not because it is the principal judgment on the scope of the polices’ duty of care to Covert Human Intelligence Sources (CHIS, formerly referred to as informers) but because of the enormous impact it may have on the preparedness on the part of members of the public to provide information confidentially where this needs to be authorised within a CHIS authorisation.
Forensically the judgment raises many more questions than it answers. If, as seems likely, it heads to the Supreme Court, interest groups: JUSTICE, ACPO, the Police Federation, may wish to intervene and let their thoughts be known.
The facts have largely been sanitised in order to protect those involved but it is a classic matrix concerning the relationship a Source may have with the police, giving rise to issues of criminality, disclosure and, at the heart of the appeal, liability for economic losses. The ruling can be summarised as holding that the police have a duty of care towards Sources in respect of physical safety and wellbeing but not to purely financial loss.
A more detailed analysis of the case will follow in Covert Policing, Terrorism and Intelligence Law Review soon but the following propositions were either not considered by the Court of Appeal or any appeal to the Supreme Court should be sufficiently broad to hear argument on them:
– Do the civil courts have jurisdiction to hear such cases at all in light of section 65 of the Regulation of Investigatory Powers Act 2000 and the decision in A v B [2009] UKSC 12. Note also the obiter remarks of Lord Brown in Al Rawi v Security Service [2011] UKSC 34 at paragraph 86: “…cases of this kind, necessarily involving highly sensitive security issues, should go for determination by some body akin to the Investigatory Powers Tribunal which does not pretend to be deciding such claims on a remotely conventional basis…”
– Since the definition of CHIS now includes undercover police officers, does the principle extend to them?
– Is the position any different if the CHIS is a juvenile?
– Where the CHIS is managed negligently and as a result their life or the lives of their family are in danger and Article 2 is engaged, does this change the position?
There are some interesting practical questions that also arise. Can, for example, an individual be a Source and a suspect at the same time? This was the case for at least a part of the period An Informer v A Chief Constable was concerned with. There seems to be an implied acceptance in the judgment that this would be an untenable position which, with respect, must be right.
What of the responsibilities to law enforcement (or the intelligence agencies) to explain the position to prospective Sources? In light of the judgment, the clearest possible duty exists for Sources to understand that if by becoming informers for the State, if they lose everything as a result, there can be no recourse to the State in the aftermath.
This is a troubling decision, the impact of which it seems has not really been thought through by those affected by it. Sun Tzu’s view that “no reward is more generous than that for a spy” may need to be re-written in this case’s wake.