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.
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.
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.