“Secrecy, being an instrument of conspiracy, ought never to be the system of a regular government” Jeremy Bentham

Mark Kennedy, the undercover police officer who infiltrated environmental protest groups in the East Midlands almost certainly participated in crime whilst doing so. Last week it emerged that some undercover police officers used the details of dead children as the basis for an alias or legend that was straight from the pages of Frederick Forsyth novel, the Day of the Jackal.

One of the questions that arises from this what the status of police officers acting as Covert Human Intelligence Sources and participating in crime is and if it is allowed what are the permissible limits of this? Why is it ok for example for Kennedy to commit acts described in Sir Christopher Rose’s report into the events as including aggravated trespass but not murder? There are several references in Sir Christopher’s report to Kennedy being an “authorised” participating source.

In fact, it may come as a surprise but there is no ability to authorise criminality by sources under the legislation governing the conduct of covert human intelligence sources, even if Sir Christopher, the Chief Surveillance Officer, uses the term with worrying casual ease in his report. Indeed the Home Office has made clear that section 27 of the Regulation of Investigatory Powers Act 2000 (the 2000 Act) which provides in express terms for matters authorised in connection with the use and conduct of a source will be “lawful for all purposes” is limited to the requirement of legality under the European Convention on Human Rights not the criminal law, specifically Article 8.

Ambiguously, the former Code of Practice issued under the 2000 Act to provide guidance on such matters said criminal conduct could be authorised “in a very limited range of circumstances”. The present Code says simply that there is nothing in the 2000 Act that “is intended to affect the existing practices and procedures surrounding criminal participation of CHIS”. This is a little difficult to reconcile. Reference is made to authorisation under the 2000 Act to participate, yet the Code implies arrangements to do so pre-date the legislation that is cited as the basis for such authorisation.

Participation in criminality is part of undercover work. Its legitimacy has been recognised time and time again by the most senior courts. In Looseley in 2001 Lord Hoffmann acknowledged that “undercover officers who infiltrate conspiracies to murder, rob or commit terrorist offences could hardly remain concealed unless they showed some enthusiasm for the enterprise”. Reference was made to the operation being “properly supervised and authorised”. In the respected text, Human Rights and Criminal Justice (1st Edition) authors Ben Emmerson QC and Andrew Ashworth QC note that previously participating sources were governed by guidelines from the Home Office (1969) and later the Association of Chief Police Officers (1984). Further Codes of Practice have been issued that are not publicly available so it is not known what they say but it is clear they have nothing to do the legislation that otherwise governs the activities of covert human intelligence sources.

English law does not allow crime committed by sources to be authorised in advance although it can be justified subsequently either through establishing before a jury that there is a defence that prevents the Crown from proving the case or by persuading the Crown that it is not in the public interest to bring a prosecution.  It is possible for the police and prosecution to reach an understanding in advance that providing the undercover officer remains within agreed limits of criminality it would not be in the public interest to prosecute. This does not “authorise” participation in criminality it simply approaches the issue practically and with a realism that reflects the challenges that certain types of crime priority represents. This presumably is what is meant by “authorisation” to those of us not in the privileged position of having access to the instrument that purports to allow it.

The problem with this is the lack of transparency surrounding the authorisation process and was precisely the issue in the prosecutions that followed Kennedy’s deployment. It imbibes it with an unjustifiable secrecy that cannot be sustained once the decision to prosecute has been made. Sir Christopher concluded his report by criticising the police for not disclosing the authority to the prosecutor and the prosecution for not interrogating the police about its existence. This flowed from the starting point of the undercover team who said at the outset that the officer could not form part of the “evidential chain”. This is and Sir Christopher subsequently held was not open to the police to negotiate.

If participation reflects the harsh and unpleasant realities of a more sophisticated and difficult to detect criminal element, police using the identities of dead children does not. There was not at the time, is not now and never has been an operational need for undercover officers of any kind to adopt such extreme approaches to their cover story. Take it to its logical end: if criminals wish to investigate the credentials of a source and discover he or she is in fact deceased it will result in compromise far quicker than could ever be the case with an entirely false identity being created with all of the computer generated documents possible supporting this. Using the details of dead children is unoriginal, unnecessary and ghoulish.