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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