Undercover Policing: Interim Report - Home Affairs Committee Contents

The legal framework governing undercover policing

9.  Undercover police operations are a vital element of the fight against terrorism and serious, organised crime. Many undercover operations are of very short duration, such as the test purchase of controlled drugs, or of alcohol by a minor. Others may last for months or, as in the cases we are considering here, several years. There are three essential problems which will always attend undercover operations—

a)  They place a number of very high risks on the officers who carry them out. This includes the risk of physical injury and violence, but also the risk to their psychological well-being posed by spending long periods living as a different person, cut off from their support network of family and friends.

b)  They involve a high degree of intrusion into the lives not only of criminals, but of innocent members of the public. This is particularly true of operations which are intended to gather information on political extremists. As Mark Kennedy explained to us, it was first necessary for him to infiltrate groups which were primarily concerned with peaceful protest in order to gain access to groups which were of more interest to the police.[10]

c)  We have some doubt whether infiltrating groups who are only involved in peaceful protest in order to see whether other groups might have different intentions is a satisfactory way for the police to proceed, certainly when done on a speculative basis. Issues of civil liberties, and the right to peaceful protest, cannot and should not be seen as relatively minor matters which can be set aside lightly.

In order to deal with these issues, there is a system of control around the use of undercover police officers. HM Inspectorate of Constabulary has observed that, where undercover operations are intended to gather evidence which will be used to bring prosecutions, accountability to the court provides a strong incentive for officers to ensure that procedures are followed correctly, and that the use of the undercover tactic is both necessary and proportionate. However, where an undercover operation is intended primarily to gather intelligence, perhaps with a view to preventing serious crime or disorder before it takes place, this incentive is not present.[11]

10.  Undercover operations carried out by police forces and others are governed primarily by the Regulation of Investigatory Powers Act 2000 (RIPA). The Home Office Code of Practice on Covert Human Intelligence Sources (CHIS) made under the Act provides detailed rules about a range of subjects related to the use of undercover officers.[12] An undercover operation must be necessary and proportionate to the intelligence dividend that it seeks to achieve and it must be fully compliant with the European Convention on Human Rights. Measures should be taken, wherever practicable, to minimise interference with the private and family life of those who are not the subject of the investigation (known as "collateral intrusion"). The Code of Practice specified procedures for authorising undercover operations, managing undercover officers in the field, and record-keeping, among other things. As well as RIPA, undercover operations will be governed by a range of other legislation such as the Human Rights Act 1998, the Police and Criminal Evidence Act 1984 and the Prosecution of Offenders Act 1985. Undercover officers are not above the law, and may themselves be held criminally liable for offences committed.[13]

11.  Despite this strong framework of statutory regulation, supplemented by guidance from ACPO, the Surveillance Commissioners and others, there is an alarming degree of inconsistency in the views of Ministers and senior police officers about the limits of what may and may not be lawfully authorised. The HMIC Report concluded that Mark Kennedy had not behaved in accordance with the National Code of Conduct for Undercover Officers when he entered into a relationship while undercover.[14] The Metropolitan Police Commissioner has told the London Assembly that no authority is ever granted for an undercover officer to engage in a sexual relationship whilst deployed on an authorised police operation, although when we asked him about it, he said that, while it would never be authorised, it "could almost be inevitable" that it would happen in some cases.[15] This comment is bound to be seen as indicating that the police knew that such intimate relationships would quite likely occur. Jon Murphy, Chief Constable of Merseyside and ACPO lead on crime, has described it as "morally wrong ... never acceptable under any circumstances", but Nick Herbert MP, then Minister for Policing, told the House in June 2012 that he was not persuaded that it would be appropriate to issue explicit guidance forbidding undercover officers from entering into relationships, as it would provide a ready-made test for the targeted criminal group to find out whether an undercover officer was deployed among them.[16]

12.  We understand, but are not necessarily convinced by, the Minister's argument about a ready-made test. There are clearly legal and moral limits to what actions an undercover officer may engage in. It would be absurd and abhorrent to suggest that an officer could commit murder or rape, for example, in order to insinuate himself into a criminal gang. As one of our witnesses put it:

would you task an officer with raping a child to infiltrate a paedophile ring ... would you task an officer with raping a woman to infiltrate a human trafficking ring? Maybe they do, but it doesn't seem right to me.[17]

Any limitation on an undercover officer's actions potentially provides a "ready-made test" of the kind the Minister is worried about, but it is clear that such restrictions on the actions of state agents are an essential element of a free society governed by the rule of law. These matters do again demonstrate that undercover police activity should only be used if there is serious concern that there is a genuine threat to public safety, or activities aimed at undermining Parliamentary democracy.

13.  Nor is it relevant whether such actions were officially sanctioned or not. When a police force places an officer into an undercover operation, he must be regarded as acting at all times in his capacity as a police officer. There is no distinction to be made between what he does in pursuance of his operational objectives, actions which might be merely incidental to his objectives, and actions which are unrelated to his objectives. It is conceivable that an undercover officer might enter into a relationship without his superiors knowing but Mark Kennedy explained to us why this was highly unlikely to happen: his managers had access to all his communications, he carried a tracking device so they always knew his whereabouts, and he was in regular contact with other undercover officers and informants who would have reported on his activities.[18] He said it was "beyond belief" that his superiors did not know.[19]

14.  Forces must have the flexibility to set the parameters of undercover operations in a way that is appropriate to each individual case, balancing risks and benefits as necessary. However, there are some lines that police officers must not cross. Ministers and senior officers have said that officers would not be authorised to engage in sexual relationships while undercover, but could not rule out the possibility of such relationships occurring anyway. We do not believe that officers should enter into intimate, physical sexual relationships while using their false identities undercover without clear, prior authorisation, which should only be given in the most exceptional circumstances. In particular, it is unacceptable that a child should be brought into the world as a result of such a relationship and this must never be allowed to happen again. We recommend that future guidance on undercover operations should make this clear beyond doubt.

15.  While these cases are all about officers entering into long-term, intimate sexual relationships while undercover, they raise more general issues about the framework for authorising and managing undercover operations. We make no comments on the merits of the High Court case, but it demonstrates that there is an unsatisfactory degree of ambiguity surrounding these cases. In matters which concern the right of the state to intrude so extensively and intimately into the lives of citizens, we believe that the current legal framework is ambiguous to such an extent that it fails adequately to safeguard the fundamental rights of the individuals affected. We believe that there is a compelling case for a fundamental review of the legislative framework governing undercover policing, including the Regulation of Investigatory Powers Act 2000, in the light of the lessons learned from these cases. This will require great care and will take some time. We recommend that the Government commit to the publication of a Green Paper on the regulation of investigatory powers before the end of this Parliament, with a view to publishing draft legislation in the Session after the next general election.

10   Qq 230 & 291 Back

11   A review of national police units which provide intelligence on criminality associated with protest, HM Inspectorate of Constabulary (2012). Back

12   Home Office (2010) Back

13   For a more detailed description of the law and guidance on undercover policing, see the HMIC Report, Annex C. Back

14   Op. cit., p. 16 Back

15   Ev 36-38. Back

16   13 June 2012, cols. 96-104WH Back

17   Q 39 Back

18   Qq 194ff Back

19   Q 271 Back

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Prepared 1 March 2013