On 31 January 2019, the Home Secretary announcedhis plan to introduce a further category of civil preventative order. Liberty describes the proliferation of these orders as a trend that “dangerously blurs the divide between the criminal and civil law”. The orders are civil in nature so the courts apply a lower standard of proof based on probability, not certainty and admitting the “proof” is subject to less exacting rules. A breach of the order may be a criminal offence. As leading QC (and former Deputy Lord Mayor for Social Integration) Matthew Ryder tweeted, “It’s legally unnecessary to put a prevention order on someone not to commit a criminal offence. The criminal law already does that and punishes them if they do”. 

A less publicised element of the Home Secretary’s announcement was the allocation of a fund of £500,000 for the purposes of helping “trading standards teams to secure the prosecution of retailers who repeatedly sell knives to under 18s”. This is likely to see an increase in the existing use of juveniles in test purchases (London Trading Standards have previously used “volunteers” for this purpose, with some success: see here). This post examines some of the issues this gives rise to. 

Volunteer or CHIS? 

The first is the troubling use of that term “volunteer” as opposed to covert human intelligence source (CHIS or Source). 

The Regulation of Investigatory Powers Act 2000 (the 2000 Act) provides in s 26(8) that: 

(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).

The recently revised (September, 2018) Code of Practiceon the use and conduct of CHIS considers test purchasing in two examples set out at paragraph 2.15: 

Example 1: Intelligence suggests that a local shopkeeper is openly selling alcohol to underage customers, without any questions being asked. A juvenile is engaged and trained by a public authority and then deployed in order to make a purchase of alcohol. In these circumstances any relationship, if established at all, is likely to be so limited in regards to the requirements of the 2000 Act that a public authority may conclude that a CHIS authorisation is unnecessary. However, if the test purchaser is wearing recording equipment but is not authorised as a CHIS, consideration should be given to granting a directed surveillance authorisation. 

Example 2: In similar circumstances, intelligence suggests that a shopkeeper will sell alcohol to juveniles from a room at the back of the shop, providing they have first got to know and trust them. As a consequence the public authority decides to deploy its operative on a number of occasions, to befriend the shopkeeper and gain their trust, in order to purchase alcohol. In these circumstances a relationship has been established and maintained for a covert purpose and therefore a CHIS authorisation should be obtained. 

There are difficulties with these examples but the most significant is the effect of s 26(7). 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. This subsection of the 2000 Act was recently considered by the Court of Appeal in Northern Ireland in Sheridan and featured in an earlier covert policing blog post here.

If therefore the conduct engaged in by the juvenile is incidental to that set out above in s 26(8) or a public authority has induced, asked or assisted the juvenile in doing so, authorisation is required in order to comply with the 2000 Act (but remembering at all times, authorisation is not in fact mandatory: see s 80.  

The Code of Practice identifies “volunteers” as a discrete category of persons, which it considers are not CHIS. 

Non-compliance 

The consequences of non-compliance are potentially significant. There are different, albeit recently amended, rules for juvenile Sources in terms of risk assessment. See the covert policing blog on the new provisions here. Last year, non-compliance in the course of a single event of what the Investigatory Powers Tribunal held was directed surveillance, resulted in a damages award of in excess of £50,000 (see the covert policing blog on the case here). This is the equivalent of 10% of the newly allocated fund for prosecutions, so ensuring compliance may be a useful investment. The latest reportfrom the Investigatory Powers Commissioner’s Office, published earlier this week noted, at paragraph 3.5: 

Using CHIS powers presents considerable challenges to public authorities. They need to consider carefully (i) the complex welfare and safety issues for the CHIS and his or her family; (ii) the proportionality of the activity to be undertaken; (iii) managing the safety of members of public acting on their behalf; (iv) the reliability of the CHIS and whether corroborating material should be obtained; and (v) any financial payments to the CHIS.

IPCO has also now made it clear that inspectors will also look at each case individually. It has not indicated how inspectors will approach decisions not to authorise on the basis of a view that the juvenile is a volunteer, not a CHIS. Inspections could widen their scope in this connection. 

Final Thoughts

It remains the case that a non-compliant deployment of a juvenile Source should not render the evidence derived from this inadmissible or result in the proceedings being stayed but it will not prevent defence lawyers from raising the arguments or from local judges exercising their own discretion. 

Public authorities proposing to deploy juvenile sources should therefore ensure they understand the relevant provisions, can demonstrate methodology in their decision-making and can withstand audit by the courts, the IPT and oversight bodies. Prosecutors need to grapple with Part II and s 80 of the 2000 Act and have to hand the many authorities that consider the admissibility of evidence and propriety of proceedings where there has been alleged non-compliance.         

“My fellow regulators and I need work together to help guide organisations in what is becoming an increasingly complex issue. The risk of well-intended but badly executed practice may form within the regulatory gaps and overlaps which exist and more examples may come across my desk”.

The use of the term “fellow regulators” is an interesting one. It had no obvious reference point in the text of an otherwise useful narrative about the issue. There is mention of the Data Protection Acts (and therefore impliedly, a role for the Information Commissioner) but notable by its omission was the Regulation of Investigatory Powers Act 2000 (RIPA 2000).

RIPA 2000 has been somewhat overshadowed by the Investigatory Powers Act 2016 but large parts of it remain in force, including the provisions relating to directed and intrusive surveillance. The starting point is s 26(2).  Insofar as relevant, this provides:

(2) …surveillance is directed for the purposes of this Part if it is covert but not intrusive and is undertaken—(a) for the purposes of a specific investigation or a specific operation;(b) in such a manner as is likely to result in the obtaining of private information about a person (whether or not one specifically identified for the purposes of the investigation or operation); and(c) otherwise than by way of an immediate response to events or circumstances the nature of which is such that it would not be reasonably practicable for an authorisation under this Part to be sought for the carrying out of the surveillance.

The use of the term “covert” is defined in s 26(9):

(9)For the purposes of [s 26] —(a) surveillance is covert if, and only if, it is carried out in a manner that is calculated to ensure that persons who are subject to the surveillance are unaware that it is or may be taking place.

At first glance, CCTV would not appear to constitute covert surveillance; it is after all demonstrably overt. However, the (recently) Revised Code of Practice on Covert Surveillance and Property Interference has contemplated this and provides in paragraph 3.39:

“However, where overt CCTV, ANPR or other overt surveillance cameras are used in a covert and pre-planned manner as part of a specific investigation or operation, for the surveillance of a specific person or group of people, a directed surveillance authorisation should be considered. Such covert surveillance is likely to result in the obtaining of private information about a person (namely, a record of their movements and activities) and therefore falls properly within the definition of directed surveillance. The use of the CCTV, ANPR or other overt surveillance cameras in these circumstances goes beyond their intended use for the general prevention or detection of crime and protection of the public.

It is reasonable to assume therefore that GMP should have sought a directed surveillance authorisation for the Trafford Centre operation. Whether it could ever have satisfied the threshold for doing so is highly questionable. The inexorable conclusion if no such authorisation was obtained: 15 million people (including children) were the subject of a wholly non-compliant directed surveillance operation”.

But it doesn’t end there.

First, which, if any, of the “fellow regulators” has primacy to investigate this highly troubling activity?  Prior to 2017, reference could have been made to the novel “Surveillance Road Map”, now withdrawn. Surprisingly, this was not published, at least primarily, for the benefit of members of the public but for regulators, so that they could understand where the lines of demarcation existed. Now, it is necessary to dig a little deeper. In an impact assessment for the then Data Protection Bill (later the 2018 Act) dated 26 October 2017, the Home Office appeared to accept, albeit in the context of the Investigatory Powers Act 2016, that any breach should be reported to the Investigatory Powers Commissioner Office (IPCO). That the present issue resides with IPCO is an argument that has therefore strong analogical force.

Second, in theory, every one of the 15 million people subjected to non-compliant directed surveillance has a right of action against GMP to the Investigatory Powers Tribunal (IPT), under s 65 of RIPA 2000.  The IPT has the power to order compensation and the destruction of any surveillance product that may have been retained.

Other questions inevitably arise about operational planning, understanding the legal position, what happened to the data and where is it now, should oversight and regulation be clearer – what happens when the state and the private surveillance industrial complex collide. Sadly, few of these will be answered in the aftermath of the Trafford Centre covert surveillance controversy.

NOTE

© Simon McKay (2018). As a general rule, I have no problem with third parties using my material but please ask for my permission before using or copying the material contained in this blog. If you do use it, attribute it to me with a link to the original content where possible. This is opinion, not legal advice.

I have covert surveillance and CHIS training scheduled in November. If you would like details, email me via the contact page on this website.

The Select Committee was established in 2003 to, amongst other things, scrutinise statutory and other instruments that emanated out of primary legislation. This scrutiny is an important, though limited, safeguard in an era where the use of so-called Henry VIII clauses has proliferated. Indeed, in a speech to King’s College London on 12 April 2016, entitled, ‘Ceding Power to the Executive; the Resurrection of Henry VIII’, the former Lord Chief Justice and then Chief Surveillance Commissioner, Lord Judge asked, “are we ceding power to the executive which should be retained by Parliament?” In answer to the question he posited he concluded, “we have done so, and we have become habituated to it”. His view was that “Unless strictly incidental to primary legislation, every Henry VIII clause, every vague skeleton bill, is a blow to the sovereignty of Parliament. And each one is a self- inflicted blow, each one boosting the power of the executive”.

The headlines the publication of the Select Committee’s report generated – in the case of the Guardian – “UK intelligence and police using child spies in covert operations” could give rise to the impression that the Order was introducing some new resource to the State’s arsenal of secret techniques. Such an impression would be misleading: individuals under eighteen years of age (so, therefore, children) have been used as “spies” since the time they were first conceived. In the 6^thcentury Sun-Tzu, in his ancient text The Art of Warcategorised informants (what he called the “Lord’s Treasure”) into their nature, not age. As to their value more recently, the late Desmond de Sliva QC, in his damning 2012 report into the role of human sources in connection with the murder of Belfast solicitor Pat Finucane, said they were “a potent weapon for the State in countering terrorism”.

The capability to authorise children as spies, or to use the legally correct, if the inelegant term, Covert Human Intelligence Source (CHIS), has existed since October 2000 when RIPA 2000 came into force. So it is assuredly not new, nor is the use of children in such a role a secret: their use is specifically addressed in the Code of Practice on the use and conduct of covert human intelligence sources. The respected civil liberties group Rights Watch (UK) was reported as saying “enlisting children as foot soldiers in the darkest corners of policing, and intentionally exposing them to terrorism, crime or sexual abuse rings – potentially without parental consent – runs contrary to the government’s human rights obligations”. Whilst eloquent and impassioned, it is inconceivable – operationally and legally – that a child would be “enlisted” with a view to being exposed to this multitude of threats. The children used in the context of such operations are already deeply embedded in this criminality – indeed, this is what makes them of use to the State in the first place and recruitment is often a first step to extricating them from it – seen as a turning point; an opportunity for the individual to expunge his or her participation in crime and rehabilitate in exchange for information of assistance in the prevention of, often the most serious crime, including terrorism.  These are not innocents being asked to embark on a lifetime “in the darkest corners” like some child Donnie Brasco, or Kingsmen, but, rather, are already there and are looking to find a way out. The current maximum they can be authorised is one month. The government’s proposal and the primary issue that deservedly vexed the Select Committee is to extend this to three months. That is all that is new.

The current position is that, in general, sources are somewhere between 16 and 18 years of age. Where they are under 16 – and this is extremely rare – the parent or guardian must consent. In cases where a parent or guardian is not available, it must a responsible person independent of the State that must give consent. A risk assessment prior to authorisation is mandatory considering both the risk of physical and psychological distress through the use of the child source and if the proposed use exceeds the current one-month period this must be updated.

The research supports the utility of juvenile CHIS but recognises that it also carries with it moral issues.

The government’s response to the criticism post-publication of the Select Committee’s report was to confirm that juvenile sources are “very rarely’ used, as a last resort and only where is both necessary and proportionate to do so in order to convict criminals and terrorists.

Done properly, that is, with the emphasis on the effective management of the risk to the child, juvenile CHIS work. Indeed the author wrote for The Times in 2008 that their use might be the answer to the (then) latest epidemic of juvenile knife crime (the tragic death of young men as a result of knife crime is not new either).

That is not to say the proposed Order is not without its difficulties or a legitimate human rights issue, it is. The biggest criticism has to be the paucity of evidence produced by the Home Office in support of the amendment. The imperative for the Order appears to be to cut back on bureaucracy and little to do with operational need. Nor is it clear where the critical risk assessment would fit into a longer period of authorisation. At present this must be reviewed after one month and every month thereafter and if the driver for the Order is to cut back on the administrative burden this is where it most likely to be. This would be a mistake: risk assessment is integral to safeguarding in this high-risk operational environment. There are wider and more endemic problems. First, trading standards departments across the UK routinely use juvenile CHIS some without authorisation at all, albeit for the relatively anodyne purpose of test purchases of alcohol or cigarettes. Second, authorisation – even in cases of juvenile CHIS – is not, in fact, mandatory under RIPA 2000 (see s 80, discussed here). The Investigatory Powers Tribunal has described it as no more than a “voluntary scheme of self-authorisation”.

The Guardian later reported that the parliamentary joint committee on human rights has now been asked to investigate the use of juvenile CHIS. This is a positive step, although the Investigatory Powers Commissioner (he has oversight for Part II RIPA 2000 activities) should be, if not already, consulted. Any inquiry must examine the benign regulatory framework within which use and conduct of CHIS sit if it is to be effective. Some overlap with the ongoing undercover policing inquiry is inevitable; after all, it is the same provisions in RIPA 2000 that authorises both that is and will be under the microscope.

The use of informants has always been and will remain controversial. Sometimes it is easier to look down the other end of the lens and ask: should a terrorist attack be allowed to happen but for intelligence that could have been obtained from a juvenile source?

Such facts as can be elicited from the judgement are few. Mr Davies is a retired senior police officer, now employed by a local authority. He is of good character. On 10 May 2016, he was arrested during a train journey and in due course charged with five offences of sexual assault. He later stood trial and was acquitted of all counts.

On the day of his arrest, Mr Davies was the subject of directed surveillance (covert but not intrusive surveillance pursuant to s 26 of RIPA) during a train journey. This appears to have been based on a complaint received from a female commuter by BTP of sexual assault that was supported by photographic evidence taken by the complainant. The officers took further photographs of Mr Davies covertly during the surveillance operation and it appears these formed a significant part of the evidence against him. During the course of his trial, it emerged that BTP had failed to obtain a directed surveillance authorisation in respect of conduct engaged in. Following his acquittal, Mr Davies lodged a complaint with the police alleging, amongst other things, that authorisation for the surveillance on 10 May 2016 should have been sought. The police agreed, finding that the investigating officer who took part in the surveillance operation demonstrated a ‘serious inability and failure to perform as a detective’. For the purposes of the IPT case, BTP admitted liability but disputed the claim for damages (Mr Davies sought damages of over £85,000).

BTP’s case on the question of damages was that the conduct engaged in was ‘merely [a] technical breach of RIPA’ as the officer could have applied for authorisation and, if he had done so, would have obtained it. There was no bad faith. The IPT disagreed in part. It identified a number of facts not mentioned by BTP in its evidence but which it considered material to the question of whether an authorisation could have been granted in the circumstances. In summary these were that: (i) no proper statement had been obtained from the complainant; (ii) no other enquiries had been made or were considered prior to the covert deployment; (iii) the circumstances under which the complainant had taken a photograph of Mr Davies were not explored; (iv) there was no urgency; and (v) the investigating officer doubted the credibility of complainant. In a rare use of superlative, the IPT held that it was ‘astonished’ that BTP’s evidence was that authorisation for the directed surveillance operation would have been granted. Indeed, the Tribunal described the evidence (provided by a senior officer) as ‘disturbing’ and representing an ‘imperfect grasp of the relevant law’.

Based on this factual matrix, it is hardly surprising that commentators expressed such dismay about BTP’s conduct. However, the judgement is notable for the complete absence of any legal analysis justifying the core conclusions reached. From a legal perspective, the findings are hugely problematic.

The first difficulty is the finding that the conduct engaged in was ‘unlawful surveillance’. This is contrary to specific provision within RIPA and inconsistent with at least one earlier judgement of the IPT. Section 80 of RIPA is of central importance here (but not referred to in judgement). It provides (emphasis added):

Nothing in any of the provisions of this Act by virtue of which conduct of any description is or may be authorised by any warrant, authorisation or notice, or by virtue of which information may be obtained in any manner, shall be construed—

(a)as making it unlawful to engage in any conduct of that description which is not otherwise unlawful under this Act and would not be unlawful apart from this Act

(b)as otherwise requiring—

(i)the issue, grant or giving of such a warrant, authorisation or notice, or

(ii)the taking of any step for or towards obtaining the authority of such a warrant, authorisation or notice,

before any such conduct of that description is engaged in; or

(c)as prejudicing any power to obtain information by any means not involving conduct that may be authorised under this Act.

In the early IPT decision of C v Police and Secretary of State [2003], the Tribunal considered unauthorised covert surveillance activity by a police force against the retired officer it thought had improperly claimed medical retirement. In considering carefully the effect of s 80 it held that ‘surveillance by public authorities is not of itself unlawful at common law, nor does it necessarily engage article 8 of the convention’. It went on to say that it was not the effect of s 80 to impose a ‘general prohibition… against conducting directed surveillance without RIPA authorisation’. The scheme under RIPA, it held, was no more than a ‘voluntary system of self-authorisation’.

The operation in Davies was clearly non-compliant but, in light of the statutory framework, is difficult to comprehend the finding by the Tribunal that the surveillance was ‘unlawful’.

The second difficulty is the finding by the Tribunal that the taking of the photographs of Mr Davies constituted an interference with his expectation of privacy. The Supreme Court in Kinloch v Her Majesty’s Advocate[2012] UKSC 62 considered the question of expectation privacy in public spaces in the context of unauthorised covert policing activity. It held:

There is nothing in the present case to suggest that the appellant could reasonably have had any expectation of privacy [while he was in public view]. He engaged in these activities in places where he was open to public view by neighbours by persons in the street or by anyone else who happened to be watching what was going on. He took the risk of being seen and of his movements being noted down… I do not think that there are grounds for holding the actions of the police amounted to an infringement of his rights under article 8.

It is difficult to reconcile the findings of the Tribunal with those in Kinloch (and other authorities to the same effect).

The third difficulty is the Tribunal’s reasons insofar as they relate to the criminal investigation and trial following the covert surveillance. It is critical of a press release relating to Mr Davies’ arrest, refers to ‘the dubious and contaminated evidence obtained from local surveillance’ and concludes that in the absence of this Mr Davies would not have been charged, let alone face a trial. These are findings that it is unclear the Tribunal was equipped to make, not least as they are predicated on a characterisation of the nature of the surveillance which, for the reasons set out above, is inconsistent with statute and authority. But moreover the prosecution was brought by the CPS, not the police, there was no application to exclude the evidence at trial, nor was there an application to dismiss the proceedings. Squaring the Tribunal’s findings with those inescapable facts is very difficult. The Tribunal noted that it was open to the defence to apply to exclude the evidence but they probably did not do so for sound tactical reasons. This may be correct, but it does not make good what is otherwise an inherently flawed analysis of the criminal trial process.

There are other difficulties with this short judgement. The officer in the case is to face disciplinary charges. The jurisdiction for a police force to discipline in such circumstances needs to be carefully considered in light of s 65 of RIPA. The commentary the judgement has inspired may also lead to confusion that non-compliance with RIPA is an issue of either admissibility or the propriety of criminal proceedings. Even the IPT recognised in Davies that non-compliance with RIPA is unlikely to result in the exclusion of evidence.

Proper sanction for non-compliance is an important safeguard under RIPA. The level of damages awarded in this case is likely to represent a significant shift in operational decision-making in this area. Perhaps this is to be welcomed. However, what should be treated with caution is a judgement from a specialist Tribunal which lacks any consideration of relevant statutory provisions and moreover its own earlier decisions.

Two things immediately set the AN apart from the work of at least one of IPCO’s predecessors, the Office of the Surveillance Commissioner (OSC): (i) the provision of advice (the OSC was very clear its role was not advisory); and (ii) the publication of the AN to provide “information…to the general public as to the general approach that Judicial Commissioners will adopt under the [Investigatory Powers Act 2016]. Such guidance as was published by the OSC was originally intended for public authorities.

What the AN lacks in quantity (it is a refreshingly eight pages long) it makes up for in quality. It covers the range of investigatory resources where a warrant, authorisation or notice requires judicial approval (or modification or review of an existing warrant) so, targeted and bulk interception and equipment interference warrants, targeted examination and mutual assistance warrants, retention of communications data and bulk acquisition warrants and bulk personal dataset warrants. It also covers Technical Capability Notices and the new (and likely to be) controversial National Security Notices.

The AN sets out the provisions governing judicial approval in targeted interception warrant cases (identical provisions are repeated throughout the 2016 Act in respect of the use of each surveillance resource where judicial approval is required). The function of the judicial commissioners is to review and, if appropriate, approve the decision to issue the warrant. It is the second half of what is known as the double-lock, a term conceived by the 2016 Act’s principal architect David Anderson QC in his seminal report, A Question of Trust. In doing so the judicial commissioner must consider the decision-maker’s conclusions on necessity having regard to the grounds upon which the warrant was issued and proportionality (whether the conduct authorised is proportionate to the operational objective to which it relates).

In considering this test, the judicial commissioner must “apply the same principles as would be applied by a court on an application for judicial review” and when looking at the decision-maker’s conclusions on necessity and proportionality consider those matters “with a sufficient degree of care” as to ensure compliance with the over-arching privacy protections set out in s 2 of the 2016 Act. This is where the AN comes into its own.

First, the AN states unequivocally that the test to be applied is not Wednesbury reasonableness as this “would not provide the requisite independent safeguard”. Instead it will apply the enhanced public law standard where there is an interference with fundamental rights and the Human Rights Act 1998 and/or EU law is engaged.

Second, possibly for the first time, the AN sets out in more detail than has previously been included in guidance from any of the oversight bodies (or Codes of Practice for that matter) what proportionality means at a practical level. In Covert Policing Law & Practice, the importance of this is underscored, “[decision-makers] will be required increasingly to provide meaningful answers to questions …as to what they understood proportionality to mean and to demonstrate an assiduous adherence to the practical steps involved in its proper application”. The AN now directs decision-makers to key principles distilled from European and domestic jurisprudence on proportionality. However, it fails, at least expressly, to emphasise the importance of a current and relevant intelligence case justifying the decision to issue warrants. This is all the more important in national security cases, where, as the AN recognises, a “wider margin of judgment will be afforded to the primary decision-maker”. Wider margin of judgment does not of course mean arbitrary or judgment exercised in the absence of any intelligence supporting an application.

Thirdly, there is a clear statement that the judicial commissioners will consider the United Kingdom’s international obligations in appropriate cases. This is indicative that the “degree of care” with which applications for approval will be considered is at the forefront of IPCO’s approach to its work.

Finally, the AN, emphasises the duty of candour on those making applications. Failures to discharge this onerous duty have led to adverse findings against public authorities before the Investigatory Powers Tribunal. There is a reference to the duty to disclose “credible evidence” that might call into question the propriety of undertaking surveillance in whatever form against the target of the warrant, authorisation or notice. This is a formulation that could give rise to confusion particularly with law enforcement agencies and other investigative bodies whose pre-occupation with the distinction between evidence and intelligence at times is well known. A better formulation might have been “credible information (evidence, intelligence or other data)”.

This is an innovative and constructive contribution that helps navigate those reading it through the complex provisions of the 2016 Act relating to judicial approval. It is reassuring at a number of levels: the early grasp by IPCO of complex procedural issues; setting them out in a way that de-mystifies the process; and providing visibility to the public. Trust, the underlying principle of Anderson’s legislative concept, is enhanced by effective security but also compliance. Confidence will also be derived from the appointment of a legal adviser to the IPCO staff and standing counsel (the pre-eminent Tom Hickman). Obviously the AN is obligatory reading; applications which have not adhered to the clear advice provided in it, will, it is anticipated, be dealt with robustly.

NOTE

Dates for the Investigatory Powers Act 2016 Training Days have been released: 15 May (London) and 17 May (Leeds). Details of the programme can be found here. Places are strictly limited and bookings have already been received from Merseyside and Northamptonshire Police, Kent County Council and others. Use the contact page on this site to reserve your place.

© Simon McKay (2018). As a general rule, I have no problem with third parties using my material but please ask for my permission before using or copying the material contained in this blog. If you do use it, attribute it to me with a link to the original content where possible. This is opinion, not legal advice.

Wang Yam’s arrival in the United Kingdom was precipitated by the terrible events of Tiananmen Square in June 1989, indelibly engraved in world history by the photograph of a pro-democracy protester confronting a Chinese tank. The image became an icon of the spirit of resistance in the face of oppressive government. It is perverse therefore that exactly seventeen years later, in June 2006, following the discovery of the dead body of Allan Chappelow in his Hampstead home, that the British government would later issue public interest immunity certificates, suppressing material relevant to Wang Yam’s trial from public gaze and require that much of his trial be held in secret. Not only that, several journalists and author Mr Harding (who had by then yet to write a word) received threats of contempt and injunction proceedings from government lawyers. In his own stand off with the state, Harding put together this remarkable account of the Chappelow murder and the trials and appeals of Wang Yam.

As a self-proclaimed Dreyfusard (in recognition of one of history’s most grotesque miscarriages of justice, the persecution of Alfred Dreyfus) the perniciousness of a secret trial has always been deeply troubling – Lord Bingham, in the Rule of Law, described it as always “a ground for concern”. In my own professional life I appeared in the High Court and later the Supreme Court on behalf of an SAS officer who had been affected by an unlawful order made during a secret hearing directing the production of what was described as the incriminating evidence against him following his arrest for allegedly breaching the Official Secrets Act. His arrest had resulted in his resignation from the British Army. He was never charged with an offence. The events changed his and his family’s life forever. The secrecy led to an absence of accountability. It weakened the rule of law and consequentially, the integrity of the justice system. The author, Emile Zola in his magnificent treatise, J’Accuse, in part exposed the Dreyfus affair; he risked prosecution himself by publishing it. Mr Harding does not go that far but his excellent book highlights a number of aspects of the Chappelow case that lead inexorably to the conclusion that the investigation into his murder was less than it should have been. Valid lines of enquiry were not pursued – a similar murder around the same time, an attempted robbery at knife-point only a few doors away from the victim’s and undercurrents of Chappelow’s possible involvement in illicit, violent homosexual activity – all of which were explored following a reference back to the Court of Appeal by the CCRC. By necessity, the scrutiny was less than it might otherwise have been had the police kept an open mind at the early stages of the investigation. Retrospective consideration of such evidence by the Court of Appeal is never ideal. In the end, the link between evidence of theft from the victim and the murder was considered a Gordian knot incapable of being cut.

Harding unfolds the events with the ease of the great storyteller, despite the complexities of the pathology of the two protagonists: Wang Yam’s upbringing in and departure from China (that could easily be straight from the pages of Le Carre); and Chappelow, a reclusive victim. The account of events surrounding the death of Chappelow takes on a Victorian feel, as if a mist descends upon Hampstead Heath, where the murderous activities of some ghoul at large go unseen. This in turn becomes almost a metaphor for the secret trial itself.

Lawyers will be quick to point out some errors of accuracy but these are of no importance to the narrative. This is a book that should be read by lawyers but is not written for lawyers. It is the better for it. Readers will not be beguiled by legal terminology and where it is used it is with a lack of familiarity that makes it more digestible. It is a troubling story that should cause alarm. Whilst Wang Yam’s trial might have been the first secret trial in recent times, it has been followed by other secret trials. It is no longer the exception or the rule. It occupies a middle ground where the law can go one of two ways: normalise secrecy or put a stop to it. In Incedal (discussed here) the Lord Chief Justice began to express some discomfort about the relationship between the independent prosecution service and the intelligence services and I have recently expressed concern about Public Interest Immunity on national security grounds here. This book may increase public awareness of the issues secret trials can give rise to so that if, in future, there are further attempts to erode the principle of open justice, there may be greater public resistance.

There is a final tragic element to this book that demands mention. It is the story of the diminishing Wang Yam, who with ever weakening resolve, no, resignation, confronts the news that the efforts to free him fail. The resistance is fading. As Zola wrote on learning of the plight of Dreyfus, “it is my duty to speak. I do not want to be complicit. My nights would be haunted by the spectre of an innocent man [punished] for a crime he did not commit”. Mr Harding has with this book done what he can to emulate the gesture. But as with Dreyfus, the issue is bigger than an author (or judge, or lawyer). It is the truth that endured then and may yet endure now.

Buy this book, tell your friends and colleagues about it and ask them to buy it. Read it, talk about it. Above all, take a place behind Wang Yam and resist.

It is a halting observation of the doctrine that it is in fact the permissible suppression of relevant evidence by the state to the accused. The operation of the doctrine is only triggered where the threshold for disclosure is otherwise met and applies where the public interest in not making disclosure outweighs the interests of the accused in having full disclosure. Surprisingly its origins are civil, not criminal law, although its use in the latter has proliferated and greatly overshadows its use in the former. It is an exceptional remedy but this exceptionality has been normalised through over use.

One of the leading cases in its evolution was R v Davis, Rowe and Johnson [1993] 1 WLR 613 (otherwise know as the M25 three) – a murder case – where the state failed to disclose the fact that an informer was paid in excess of £10,000 by the police for information implicating the accused. The convictions were later quashed. (Mr Rowe went on to have a successful career as a BBC journalist). An earlier case, Judith Ward (1992) 96 Cr App R 1, unquestionably wrongly convicted of the M62 bombings, resulted in the requirement that the judge, not prosecutor should decide whether PII should be granted in criminal proceedings.

PII has had a chequered past before the European Court of Human Rights. Over the years, since Ward and other cases, the principles have developed and the procedure set down in part in legislation and the Criminal Procedure Rules.

In the United Kingdom, the leading case remains R v H; R v C [2004] UKHL 3. This offers a series of possible solutions where the state wish to suppress ordinary disclosure whilst achieving fairness to the defence, including the provision of summaries of sensitive intelligence, redacted documents or the appointment of a special advocate. Where none of these solutions are practicable, then either disclosure must be made or the proceedings discontinued. The option of dropping a case may seem extreme but it does happen, even in the most serious of cases, including terrorism: see for example the recent Northern Irish case of Duffy.

Where an order is made, a critical safeguard is the duty on the part of the prosecutor and judge to keep that decision under review. In light of the existing and seemingly systemic issues emerging around standard disclosure, it is probably a reasonable assumption to make that these are also likely to present in cases where PII is asserted.

Some fortification of this assumption can be found in the Crown Prosecution Service’s own guidance on PII in national security cases.

The position in relation to national security cases is different. The CPS website notes that “the preferred means by which [MI5, MI6 and GCHQ] seek to claim PII before a court” (emphasis added) is by way of Ministerial Certificate. Such a certificate – the issue of which has no statutory basis and has not so far been challenged domestically or before Strasbourg – requires the relevant Minister (the Secretary of State for the Home Department in the case of MI5 and for Foreign and Commonwealth Affairs in the cases of MI6 and GCHQ) to be satisfied that any disclosure “would cause real risk of serious prejudice to an important public interest”. The certificate is placed before the trial judge, usually at a type three hearing. In Guardian News and Media Ltd & Ors v Incedal [2014] EWCA Crim 1861 (in the context of in camera proceedings) the Lord Chief Justice held that the court will “pay the highest regard” to what the Secretary of State says in the certificate on national security issues providing there is an evidential basis for it. For more reflections on Incedal see here. National security is an issue for the executive; Secretary of State for the Home Department v Rehman [2003] 1 AC 153; determining whether there is evidence supporting the view and whether open justice should be fettered are decisions for the judiciary. Again, this is the position in principle; practice is likely to vary in different Crown Courts throughout the country. It is noteworthy that if the prosecutor makes the application (and it is envisaged by the CPS it may not always be the prosecutor who does so) he or she is merely trustee for the material, which “must be returned to the [intelligence] Agency after the hearing”. How the on-going review – the critical safeguard – of the material can take place effectively in such circumstances is difficult to envisage.

What is clear is that in the face of catastrophic failings within a transparent and accountable legislative framework, it is likely similar concerns pervade the darker corners of disclosure in the criminal justice system, particularly when that most formless of legal concepts, national security, is at large.

The response in England and Wales to the sentencing of Gary Haggarty, a loyalist terrorist, who was facing over two hundred charges, including five of murder was somewhat and characteristically muted. Haggarty, who admitted the offences, was sentenced to a mere six and a half years. This was as a result of an agreement he entered into with the state under the provisions of the Serious Organised Crime and Police Act 2005 (or SOCPA). However, the use of these agreements is not confined to terrorist cases, nor is England and Wales immune from them. Indeed, the published figures suggest that over the three-year period of 2013 to 2016, there were a total of 58 such agreements authorised by the current Director of Public Prosecutions during her tenure.

Serious Organised Crime and Police Act 2005: an overview of Part II, Chapter II.

The courts have understatedly recognised that “there never has been, and never will be, much enthusiasm about a process by which criminals receive lowers sentences than they otherwise deserve”, let alone immunity (as the understandable reaction in Northern Ireland to Haggarty’s sentence bears testimony). However, balanced against this is the “stark reality” that without such persons providing information against their former associates “major criminals who should be convicted and sentenced for offences of the utmost seriousness might, and in many cases, certainly would, escape justice”. The handful of provisions in sections 71 to 75 of SOCPA create the framework within which immunity from prosecution and reduction in sentence to reflect assistance given or offered by an individual facing prosecution or who has been convicted operates.

Immunity: ss 71 and 72, SOCPA

Only a specified prosecutor, who is either the Director of Public Prosecutions for England Wales or Northern Ireland, the Director of Revenue and Customs, the Director of the Serious Fraud Officer or a prosecutor designated by one of these office holders, may offer an individual immunity from prosecution within the jurisdiction of their office, by providing written notice (an immunity notice).

A specified prosecutor is also empowered to provide an undertaking (a restricted use undertaking) that information provided by a person will not be used against him or her in any proceedings to which the undertaking applies. Of the 58 agreements referred to above, none related to immunity.

Reduction in, or review of, sentence: ss 73 and 74, SOCPA

Any agreement under section 73 for a reduction in sentence must be pursuant to a written agreement with a specified prosecutor and may be in respect of any offence, not just those before the court. The reduction in sentence will be based on the extent and nature of the assistance given or offered. Under section 73(3), if the court is reducing the sentence, unless there are public interest reasons for not doing so, it must state in open court – as it did in Haggarty’s case – that a lesser sentence has been passed and what the sentence would otherwise have been. Any reduction is in addition to the discount that the individual may be entitled to as a result of a guilty plea.

Section 74 provides for a review of the reduced sentence where the individual reneges on, or fails to fulfil, his or her obligations under the agreement or where subsequently a sentenced prisoner wishes to offer or provide assistance. This was previously the responsibility of the Parole Board and Home Office.

The need for immunity or reduction in sentencing agreements

There are a number of authorities both prior to and after SOCPA came into force. In Sinfield (1981) 3 Cr App R (S) 258 a pre-SOCPA case, the Court of Appeal made it clear that a discount, possibly a substantial discount, on sentence could be expected where significant assistance has been given to the authorities, especially where it results in the apprehension of offenders or the prevention of other offences. The extent of any discount will vary in accordance with the circumstances of the case. It will be affected by the quality, quantity, accuracy and timeliness of the information provided and whether the individual is prepared to give evidence and whether he or she has placed either himself or those close to him in jeopardy by electing to cooperate.

In R v Sivan (1988) 10 Cr App R (S) 282 the Court of Appeal made it clear that the purpose of the discount is to demonstrate to convicted persons that it may be worthwhile providing similar assistance. The leading authority post-SOCPA remains R v P; and R v Blackburn [2007] EWCA Crim 2290. In this case, the Court of Appeal emphasised that the purpose of the new framework was to ensure that the previous difficulties caused by ‘private’ arrangements relating to the provision of texts, as they were known and that the “formalities” of the new regime “should avoid later questions to which any kind of private arrangement can be subject”. SOCPA does not abolish the established features of the sentencing process in this area. The ‘text’ system still exists for those unwilling to enter into a formal process but defendants will receive less of a reduction and post-conviction reviews will only be permitted where, through oversight by the prosecution for example, the sentencing judge is unaware of any assistance provided.

In terms of sentencing principles, the Court held that “no hard and fast rules can be laid down’”and that each case would be fact specific. The first factor was the criminality of the defendant and weight given to such mitigating and aggregating features that exist. Thereafter, the Court must assess the “quality and quantity of the material provided by the defendant”. Particular value should be attached to cases where the defendant provides and is prepared to give evidence especially where this leads to convictions for the most serious offences (such as terrorism or murder) or the disruption or break up of organised criminals. The risk arising to the defendant or his or her family by providing the information is also a relevant factor.

Problems

Quite apart from public disquiet on the use of agreements, other issues have arisen largely around the question of the reliability of the person offering their assistance. The process attracts what the courts have described as those of a “manipulative and cynical” nature who might “self-interestedly [do] a deal or [enter] into…a Faustian pact”. This abuse of the scheme is not one way, law enforcement will often flirt with persons in custody and talk of entering into an agreement but in the absence of authority from a specified prosecutor, such talk is unlikely to result in a reduced sentence and the individual can expect to be “pumped (for information) and dumped”. Difficulties can also arise where the person entering into the agreement is a covert human intelligence source but these are outside the scope of this article.

The Crown Prosecution Service has published guidance on the application of the provisions for both defence advocates and prosecutors. It is also dealt with in Covert Policing Law & Practice.

Seeking out what underlies the Haggarty deal

Since the currency of such agreements is based on the intelligence value derived from entering the agreement and not necessarily the number of convictions that follow, even in the presence of reasons for a reduction in sentence, victims, their families and the wider public, can experience a palpable sense of injustice where as in the Haggarty case, the reduction is so significant and they do not know, for secrecy reasons, what the extent of the intelligence was. It may be little comfort to those affected by Haggerty’s terrorist activities but it is reasonable to conclude that the intelligence he provided the authorities must have been of the highest quality, likely to have a major impact on the long-term stability of Northern Ireland.

The Investigatory Powers Tribunal (IPT) was established under s. 65 of the Regulation of Investigatory Powers Act 2000 (RIPA). It is the only appropriate tribunal for the purposes of section 7 of Human Rights Act 1998 (HRA) in relation to, insofar as relevant for the purposes of this article, any proceedings under s. 7(1)(a), HRA (proceedings for actions incompatible with ECHR rights) against any of the intelligence services…or complaints properly made to them and any qualifying proceedings.

Complaints are those made to them where the IPT is the appropriate forum: s. 65(2)(b), RIPA and proceedings are those brought against the intelligence services (or their agents) or they are “proceedings relating to the taking place in challengeable circumstances of conduct falling within [s. 65(5), RIPA]”. That conduct includes that by or on behalf of the intelligence services and conduct by a police force under Part II, RIPA (use and conduct of covert human intelligence sources, directed and intrusive surveillance). Challengeable circumstances is defined in s 65(7) and (7A). The former relates to conduct that was or ought to have been authorized under RIPA and the latter conduct under s 76A (relating to foreign surveillance operations).

The possibility of an appeal or judicial review of the Tribunal’s decision-making was previously expressly excluded under s. 65(8), RIPA.

These two provisions in s 65, RIPA are known as “ouster clauses” (for ease theses are referred to the “jurisdiction ouster” and the “appeal ouster”, respectively). They have a unique constitutional significance: see the blog by Paul Daly, “Thinking again about ouster clauses: R (Privacy International) v Foreign and Commonwealth Secretary” and overview of and comprehensive draft paper by Professor Mark Elliott “Through the Looking-Glass? Ouster Clauses, Statutory Interpretation and the British Constitution”. This article is concerned with how the provisions have been applied in practice, the amendment relating to the appeal ouster in the Investigatory Powers Act 2016 (IPA 2016) and issues arising from one of the recent decisions on jurisdiction.

Jurisdiction

The leading case remains R (on the application of A) v B [2010] 2 WLR 1. The facts related to a manuscript written by a former member of the Security Service (MI5) who had then sought permission from the Service to publish it, without which, publication would almost certainly have constituted an offence under the Official Secrets Act 1989. Permission was refused and relying on R v Shayler [2003] 1 AC 247, the claimant brought proceedings for judicial review. The defendant resisted this, claiming that the appropriate forum was the Investigatory Powers Tribunal. The Supreme Court agreed.

The case was considered in AJK and others v Commissioner of Police for the Metropolis [2013] EWHC 32(QB), litigation arising from the activities of rogue undercover officers who had infiltrated protest groups and formed intimate relationships with persons from within the groups. The issue before the High Court was whether the nature of the relationship between the undercover officers and female protestors fell within the definition of use and conduct of a Covert Human Intelligence Source for the purposes of s 26(8) of RIPA and was therefore conduct taking place in challengeable circumstances. The relationship gave rise to both human rights’ based claims (under Article 8) and claims at common law (under the tort of deception). Tugendhat J held that it did in part fall within Part II of RIPA and that in the circumstances the proceedings insofar as they related to the alleged breach of the Human Rights Act 1998, must be heard by the IPT. However, the common law claims for damages fell outside the Tribunal’s jurisdiction. The judge ordered that pending the determination by the Tribunal, these should be stayed. This was upheld on appeal, although the stay was lifted.

Recent application

Jurisdiction

The jurisdiction ouster has been considered recently by the Court of Appeal in Northern Ireland in two cases: R (Sheridan) v Chief Constable of the Police Service of Northern Ireland and the Police Ombudsman of Northern Ireland [2017] NICA 54 and X v Ministry of Defence and Chief Constable of the Police Service of Northern Ireland [2017] NICA 66. The Sheridan decision insofar as it related to the construction of s 26, RIPA, has been looked at in detail here.

In Sheridan, the complaints had been made to the Ombudsman and Chief Constable about the conduct of police officers that had attempted to recruit the appellant as a covert human intelligence source. The appeal was dismissed. The judicial review constituted “proceedings” against a police force relating to conduct taking place in challengeable circumstances and the IPT had sole jurisdiction. In respect of the Ombudsman, the court held that since he was not mentioned in s. 65(5) the proceedings could in principle have proceeded against him.

In X the court at first instance also held that the human rights challenges arising out a similar approach to the claimant by police officers, fell within the exclusive jurisdiction of the IPT, although the tortious claims did not (this is entirely consistent with the earlier decision in AJK). The Court of Appeal, applying Sheridan, held that there was a sufficient factual basis for the judge reaching that conclusion and dismissed the appeal.

The jurisdiction of the IPT, set out in section 65 of RIPA, the jurisdiction ouster provision, is now widened by the IPA 2016 to reflect the increased investigatory scope of the new Act.

Appeals

In R (Privacy International) v Secretary of State for the Foreign and Commonwealth Department [2017] EWCA 1868 the appeal ouster was considered by the Court of Appeal (following a decision by the Administrative Court, which held that no judicial review was possible of the IPT’s decisions). The constitutional significance of the decision has been considered in the blog and paper referred to above and cannot be improved upon. This article seeks to highlight the amendment of RIPA so as to provide for a right of appeal in s 67A as a result of s 242 of the IPA 2016.

The detailed provisions of the IPA 2016 are analysed in Blackstone’s Guide to the Investigatory Powers Act 2016 but in summary, the right of appeal is available to a ‘relevant person’ (the complainant or respondent or person complained against and in the case of a reference made to the IPT, it includes a public authority). It is exercisable in tightly prescribed circumstances, namely a point of law arising out of a determination by the IPT under section 86(4), RIPA.             Permission to appeal is required and may be granted by the IPT or the appropriate appellate court that must, if permission is given, hear the appeal. The threshold for granting permission is high: an appeal must raise an important point of principle or practice or another compelling reason for granting permission must exist.

Current and future issues

The problem in Sheridan

The Court of Appeal held in Sheridan that a judicial review against the Ombudsman could proceed. It seemed to suggest it could do so because the failure to give reasons was not an issue within the jurisdiction of the IPT and “the fact that the Tribunal is the only appropriate tribunal for proceedings against the Chief Constable…”

A judicial review against the Ombudsman, as is the case with any public authority, can in principle proceed where there has been a failure to provide reasons but it is respectfully submitted that where proceedings relate as they did in Sheridan to “the taking place in any challengeable circumstances of any conduct falling within subsection (5)”, jurisdiction is, in such circumstances ousted. There is no requirement for the Ombudsman to be identified within the public authorities referred to in s 65. The Court of Appeal Northern Ireland may have been wrong on this point.

Interestingly, s 65 does not prevent the Ombudsman from considering a complaint of conduct under Part II of RIPA; the IPT has jurisdiction only in relation to eligible complaints made to it. The same must be true of the Independent Office for Police Conduct but any challenge to their decision by a complainant must be to the IPT and not an application for permission to move for judicial review.

Reach of the jurisdiction: criminal proceedings?

One interesting issue yet to be tested is whether jurisdiction to bring a challenge relating to the admissibility or propriety of unlawful surveillance and or the conduct of informers in criminal proceedings is also ousted. This is an uncomfortable proposition – the idea that the exclusionary remedies in ss 76 and 78 of PACE or the inherent jurisdiction of the court to apply the doctrine of abuse of process are ousted by s 65– but that is one interpretation of the provision. The counter argument is to examine the core of primary purpose of the proceedings but what seems clear in AJK and Sheridan is the court had no difficulty in hiving off those matters that were the sole jurisdiction of the IPT. A short amendment excluding criminal proceedings (which are already defined in RIPA) would cure any ambiguity. However, it is very unlikely that criminal defence lawyers or prosecutors will be raising the jurisdiction question any time soon; they may, to develop Professor Mark Elliott’s theme, consider such an application to be more suited to Alice in Wonderland than the law reports.