Legislative Scrutiny: Covert Human Intelligence Sources (Criminal Conduct) Bill Contents

5The scope of authorisations

Authorisation of criminal conduct “in relation to” a CHIS

54.The definition of what amounts to “criminal conduct” for the purposes of a CCA is wider than simply criminal activity by a CHIS. It extends to “conduct […] comprised in any activities which involve” criminal conduct “in connection with” the conduct of a CHIS.57 The conduct must also be conduct that “consists in conduct by or in relation to” the CHIS and is carried out for the purpose of the relevant investigation or operation.58 This is an unhelpfully obscure definition.

55.What is clear is that the conduct authorised need not be the conduct of the CHIS themselves but may also be conduct “in relation to” the CHIS. The best available explanation of this phrase appears in the draft CHIS Code of Practice that was published with the Bill, which explains only that:

“6.18 The criminal conduct that may be authorised is not limited to criminal conduct by a CHIS: a criminal conduct authorisation may authorise conduct by someone else “in relation to” a CHIS, namely those within a public authority that are involved in or affected by the authorisation.”59

56.The Code of Practice gives no indication of the circumstances in which it would be necessary or appropriate to authorise criminal conduct by a person within a public authority who is “involved in or affected by the authorisation.” It seems plausible that the purpose of authorising conduct “in relation to” a CHIS is to ensure that those authorising or handling a CHIS are not exposed to prosecution on the basis of secondary liability.- but this is not a justification that has been put forward by the Home Office. If this is their reason they should say so.

57.In any event, the broad definition of criminal conduct within the Bill, particularly its use of the terms “in connection with” and “in relation to”, goes further than is necessary to protect against secondary liability. For example, the Bill would theoretically allow for a CCA that authorised an assault committed against a CHIS by a police officer or even the use of violence by a manager against a CHIS handler.

58.The precise extent of what conduct can be authorised under the Bill lacks clarity. Furthermore, the Government has provided no clear explanation why there is a need to authorise criminal conduct by someone other than the CHIS him or herself. The Bill requires amendment to clarify who can be authorised to commit criminal offences. In the absence of a clear explanation of the need for a CCA to authorise more than the conduct of the CHIS, only the conduct of the CHIS and any resulting secondary liability, should be capable of authorisation.

No exclusion for children

59.The existing law expressly caters for the use of children as CHIS (although the relevant legislation and guidance refers to them as ‘juveniles’).60 The Joint Committee on Human Rights has previously raised concerns about the use of ‘child spies’ in an exchange of letters with the Minister for State for Security and Economic Crime in 2018 and the Investigatory Powers Commissioner (IPC) in 2019.61 Also in 2019, the High Court assessed whether the scheme in place to regulate the use of children as CHIS provided sufficient safeguards to comply with Article 8 ECHR. The Court concluded that the scheme was compliant. However, it was accepted that the use of a child as a CHIS was:

“[…] liable to interfere with the child’s ‘private life’, which covers the physical and moral integrity of the person. The dangers to the child of acting as a CHIS in the context of serious crimes are self-evident.”62

60.In its submission to the Committee, Justice understandably observed that it is “inconceivable that the Bill remains silent on the granting of CCAs to children, which could place them in dangerous or abusive situations at the Government’s behest.”63 The Bill provides only for the authorisation of criminal conduct by CHIS, and does not make any distinction between adults and children. Neither is any distinction drawn between adults and children for the purposes of CCAs within the Revised CHIS Code of Practice.64

61.It is hard to see how the involvement of children in criminal activity, and certainly serious criminal activity, could comply with the State’s obligations under the HRA and under the UN Convention on the Rights of the Child (UNCRC) in anything other than the most exceptional circumstances. Article 3 UNCRC provides that:

In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

62.The use of children as CHIS is likely to engage their Article 8 rights. A child acting as a CHIS in respect of serious crime is self-evidently at significant risk. Authorising a child to commit criminal offences substantially raises the risk to them and increases the likelihood of their rights being violated. We have seen no specific justification provided for authorising children to engage in criminal conduct. Deliberately involving children in the commission of criminal offences could only comply with Article 3 UNCRC or Article 8 ECHR in the most exceptional cases.

63.The Bill must be amended to exclude children or to make clear that children can only be authorised to commit criminal offences in the most exceptional circumstances.

‘Belief’ in necessity and proportionality

64.The Bill provides that a CCA may only be made where the person authorising it “believes” the tests of necessity and proportionality have been met. There is no requirement in the Bill that the belief needs to be a reasonable one.65 This appears to mean that whether or not the CCA can be made relies only on the subjective belief of the person making the authorisation. The authorisation will be valid regardless of how unreasonable an honestly held belief might be.

65.Objectively reasonable belief is a standard requirement for the exercise of police powers - from stop and search,66 to arrest,67 to applying for a search warrant.68 This prevents these powers being lawfully exercised without reasonable justification. It is a vital protection against overzealous or misguided officers. Plainly there is a risk of criminal conduct being authorised where it is unnecessary and disproportionate, and thus likely to violate human rights, if the belief upon which it is based is not an objectively reasonable one.

66.The effect of a CCA is to exclude the CHIS committing the authorised criminal conduct from criminal and civil liability. If a test of “reasonable belief” were applied to the making of an authorisation, a CCA made without objective justification would be invalid. However, the CHIS acting under the CCA would not know this. This could result in the CHIS being exposed to criminal prosecution or a civil claim, despite the fault being with the individual making the authorisation.

67.It cannot be acceptable for CCAs to be made on the basis of an unreasonable belief in their necessity and proportionality. However, simply requiring the person authorising the criminal conduct to have an objectively reasonable belief could result in CHIS being prosecuted or subjected to civil claims unfairly. For this reason, it would be more effective for a test of objective reasonableness to be applied in the course of an independent judicial approval process (see Chapter 7 below).

Authorising criminal conduct in the interests of “preventing disorder” or of the “economic well-being of the UK”

68.The Bill permits CCAs to be made for a limited number of purposes. Authorising criminal conduct may in certain circumstances be necessary and proportionate in the interests of national security or for the purpose of preventing or detecting serious crime. These were the purposes considered by the Investigatory Powers Tribunal when they approved MI5’s policy in the Third Direction challenge. They are also the purposes highlighted by the Home Office in the Explanatory Notes (“The use of CHIS is a key tactic in protecting national security and investigating serious crime”). However, the Bill does not limit the use of CCAs to protecting national security or preventing/detecting serious crime, but permits them to be made for the purposes of “preventing disorder” and for the “economic well-being of the United Kingdom”.

69.The language used in the test of necessity and proportionality contained in the Bill, including the references to preventing disorder and to economic well-being, mirrors some of the permissible justifications for interferences with qualified rights that appear in the Convention.69 However, this alone does not justify including these purposes within the Bill.

70.It is difficult to understand why it is necessary to include ‘preventing disorder’ as a potential justification for authorising criminal conduct. Serious disorder would amount to a crime, most obviously under the Public Order Act 1956, and therefore be covered by the purpose of “preventing crime”. Any non-criminal disorder would not be serious enough to justify the use of criminality to prevent it.

71.In the same way, using CCAs to detect or disrupt criminal or terrorist activity that puts at risk the economic well-being of the country will be covered by the purpose of preventing crime or protecting national security. It is far from clear how non-criminal activity that poses an economic risk could justify the use of criminality to prevent it.

72.In relation to the use of CHIS in respect of non-criminal activity, Reprieve et al raised concerns in their written evidence that in the Bill:

“There is no express prohibition […] in relation to the activities of Trade Unions, anti-racism campaigns and environmental campaigns that have been the site of illegitimate CHIS activity in the past.”70

73.Extending the use of CCAs into non-criminal situations risks unjustified interferences with the activities of trade unions and other legitimate activists and campaigners and their rights under Articles 10 and 11 ECHR (the right to free expression and the right to free assembly). The purposes for which criminal conduct can be authorised should be limited to national security and the detection or prevention of crime.

74.Overall, the power to authorise criminal conduct contained in the Bill is far too extensive, in respect of the type of criminal conduct that can be authorised, who can be authorised to carry it out and the purposes for which they can authorise that conduct. The lack of limits on the use of CCAs risks the human rights of victims, and of CHIS, being violated.

57 Those activities (not the conduct) must be specified or described in the CCA.

58 CHIS Bill Clause 1(5) which inserts a new section 29B(8) RIPA

61Child spies: use of juveniles as covert human intelligence sources”, Joint Committee on Human Rights, 12 September 2018

62 R (Just for Kids Law) v SSHD [2019] EWHC 1772 (Admin)


64 The Revised Code of Practice does, however, contain a section dealing more generally with Juvenile Sources at 4.2–4.7

65 The Draft Revised CHIS Code of Practice, at paragraph 3.10, states that “it is expected that the person granting the authorisation should hold a reasonable belief that the authorisation is necessary and proportionate” but this is not a legal requirement.

66 Police and Criminal Evidence Act 1984 (PACE), section 1

69 See Article 8(2): “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”

70 Reprieve et al (CHIS0002)

Published: 10 November 2020