Summary of facts
Brian Sheridan was arrested in 2011. He was a passenger in a car with others and found in possession of a number of rifles and handguns. It was alleged he and his associates were on their way to bury the weapons as part of terrorist-related activity. He later pleaded guilty to criminal offences and was sentenced to a term of imprisonment. Press reporting suggested he was a member of the Real IRA or other proscribed organisation. Mr Sheridan denied membership of any terrorist group but not their views or methods.
He lives and is well known in Armagh, an area where there is paramilitary activity. Following his term of imprisonment he continued to associate with and refer to those arrested with him as his “friends”. From these facts, the Court held that it could be inferred he has knowledge that might assist the investigation and prosecution of terrorist offences, otherwise possess information of such assistance and, or be in a position to develop relationships with those engaged in or with knowledge of terrorist activities.
On 13 and 15 February 2015, following his release from prison, Mr Sheridan was on holiday in Norway when he was approached by police officers. They said they wanted to speak to him. On both occasions he told the officers he had no wish to do so. Later that year, on 22 October 2015, his car was stopped at a police checkpoint. During the course of this, he was approached by officers once more and invited to talk to them. Again, he declined to do so. The incidents caused Mr Sheridan distress and anxiety – in particular that an attempt to recruit him publicly had placed him at risk – and he sought legal advice.
A complaint was made against the Chief Constable to the Police Ombudsman for Northern Ireland alleging that the police had attempted to recruit him as a Covert Human Intelligence Source (CHIS) for the purposes of Part II of the Regulation of Investigatory Powers Act 2000 (RIPA) and that this violated his rights under the European Convention on Human Rights. The Ombudsman’s office investigated the matter but on 22 February 2016, rejected the complaint on the basis there was insufficient evidence to support the allegations made. On 15 April 2016, after a request for the Ombudsman’s office to elaborate on its reasons for rejecting the complaint, it did so, indicating that RIPA did not specifically cover approaches of the kind said to have been made by the officers in the case but the police’s own guidance did provide a requirement that any approaches were properly planned, documented and “signed off” by a senior authorising officer. The Ombudsman’s office later accepted that, contrary to its original position, there was provision in RIPA for such approaches.
The police position on the complaint was that the proper forum for it was not the Ombudsman’s office but the Investigatory Powers Tribunal (IPT). Mr Sheridan judicially reviewed the decisions.
The court’s decisions
At first instance the application was dismissed. This was for a number of reasons but included that as a matter of law, the IPT was the appropriate forum. The decision was appealed, contending amongst other reasons, that certain types of approach to individuals fell outside the scheme under RIPA and if correct, the jurisdiction for any complaint was not therefore the IPT. In addition, even if the correct forum for the complaint against the police was the IPT, this did not extend to the Ombudsman, who retained jurisdiction to consider human rights complaints. This article examines the issue of the construction of s. 26, RIPA only; the jurisdiction issue will be considered in a later post.
The appeal was dismissed. The Court of Appeal’s decision is the first to consider in detail the consequences of an approach to prospective CHIS.
Section 26, RIPA
The relevant provisions are found in s. 26. The starting point is the often over-looked s. 26(7), which sets out the parameters of part of the later definition, then (8). This provides:
(7) In this Part—
(a) references to the conduct of a covert human intelligence source are references to any conduct of such a source which falls within any of the paragraphs (a) to (c) of subsection 8, or is incidental to anything falling within any of those paragraphs; and
(b) references to the use of a covert human intelligence source are references to inducing, asking or assisting a person to engage in the conduct of such a source, or to obtain information by means of the conduct of such a source.
(8) A person is a covert human intelligence source if—
(a) he establishes or maintains a personal or other relationship with a person for the covert purpose of facilitating the doing of anything falling within paragraph (b) or (c);
(b) he covertly uses such a relationship to obtain information or to provide access to any information to another person; or
(c) he covertly discloses information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.
The terms “covertly use [and] disclose” are defined in s. 26(9) but are not relevant for present purposes.
Court of Appeal (NI)’s judgment on construction of s. 26, RIPA
The Court of Appeal held that the term “use” had “an extended meaning” and that this included an initial approach but only “if the individual is being induced or asked or assisted to engage in the conduct of such a source or obtain information by means of such a source”. This had to be of the particular type of conduct set out in s. 26(8) or incidental to it. A number of important holdings were made in relation to the construction of s. 26.
First, s 26(8) is a condition precedent. If its provisions are not met for the purposes of an approach the conduct falls outside Part II, RIPA. The conduct referred to in s. 26(7) was inexorably linked to that in (8)(b)-(c) in determining whether (8)(a) was satisfied.
Second, the language of s. 26 is proscriptive. It was irrelevant whether the approach was rejected or whether a relationship was in fact formed.
Third, “use” for the purposes of s. 26(7)(b) may be express or implicit.
Fourth, it is the covert nature of the relationship that is of significance not the value of the information obtained or disclosed. The former determines whether Part II is engaged; the latter whether it might be appropriate to authorise.
Fifth, context may make clear that which is not specifically expressed.
In addition, the Court held that inducing, asking or assisting an individual to provide information past on a former or historical relationship which is no longer maintained, falls outside the provisions of Part II, RIPA. Each type of conduct needed to be considered discreetly; inducing – “to lead on, move, influence, prevail upon” – was not the same as asking. It is the subjective impact on the individual that is determinative of whether the approach satisfies s. 26(7). On the facts of the present case, Part II applied.
This is an important and useful decision in an area where there has so far been little judicial attention and which has implications for public authorities and their policy on recruitment and authorisation. In Covert Policing Law & Practice, the author opined:
“Even before a decision is taken as to whether the individual is in fact likely to engage in the use and conduct of a source, section 26(7) is triggered and will need to be considered. The ambit of establishing or maintaining the relationship is wide and includes any recruitment of a source through inducements, or asking or assisting the person concerned to engage in the conduct of a source. This broad and vague terminology also catches the source in relation to the conduct in which he or she may subsequently engage”.
This, it can now be said, is a view supported by the judgment in Sheridan.