Covert Human Intelligence Sources (CHIS)
Confirmed up to date 07/07/08
Contents:
Principle
1. Generally, information obtained from covert human intelligence sources (CHIS) may be used in evidence, subject to the usual rules of admissibility. However, material which would reveal the identity of a person who is a covert source of information cannot be adduced in evidence (in order to protect the CHIS and to ensure the flow of information does not dry up).
2 This general exclusionary rule is subject to an exception where disclosure of a covert source (or of information leading to the identity of a covert source) is necessary to establish the innocence of the accused.
3 The use of covert techniques is affected by Articles 6 (fair trial) and 8 (privacy) of the ECHR. See guidance chapter on covert surveillance.
4 Part II of RIPA is enabling legislation - it places no obligation on public authorities to obtain authorisation for the use of either covert surveillance or CHIS, although without authorisation these actions are likely to be unlawful and reduce the likelihood of any evidence being ruled as unfairly obtained, or of the trial being stayed for abuse of process.
5 The courts are entitled to take account of alleged breaches of Article 8 in determining how to exercise the section 78 discretion to exclude evidence (see guidance on covert surveillance). See evidential considerations below and CPS Legal guidance on Confessions and Unfairly Obtained Evidence (Chapter 13).
The Law
6 The use of a covert human intelligence source (CHIS) is regulated by Part II of the Regulation of Investigatory Powers Act 2000 (RIPA)
http://security.homeoffice.gov.uk/ripa/legislation/
7 And the statutory Code of Practice on CHIS, pursuant to Section 71 of RIPA
http://security.homeoffice.gov.uk/ripa/publication-search/ripa-cop/human-cop?view=Binary
8 Definition of CHIS at s. 26(8) of RIPA a person who establishes or maintains a relationship with another person for the covert purpose of obtaining information or providing access to information to another person, or covertly disclosing information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.
9 As well as informants, undercover police officers fall within this definition see Paragraph 4.2 of CHIS Code of Practice.
10 What is a covert purpose in a relationship? If the relationship is conducted in a manner that is calculated to ensure that one of the parties to the relationship is unaware of the purpose, s. 26(9)(b) of RIPA.
11 What does it mean that a relationship is used covertly? If one of the parties is unaware of the use in question, s. 26(9)(c) of RIPA.
12 RIPA is intended to ensure that covert law enforcement is ECHR compliant. Issue: whether use of CHIS offends against Article 8(1)? If so, the use must be justified by reference to the criteria in Art. 8(2). This should be possible if the use of CHIS is authorised in accordance with RIPA (s.29), which includes an assessment of the necessity and proportionality of the use of the CHIS. See below. See also Archbold 15-252 to 256.
Authorisations under RIPA
13 Authorisation for the use of a CHIS may be granted by a police superintendent. Grounds for authorisation are set out in s.29(3/) RIPA, and include the prevention or detection of crime, and the interests of public safety.
http://www.legislation.hmso.gov.uk/acts/acts2000/00023--d.htm#29
14 The authorisation must be granted by the Chief Constable where the likely consequence of the directed surveillance would be for any person to acquire knowledge of confidential material (e.g., legally privileged or medically confidential material).
The authorising officer must give authorisations in writing. However, in urgent cases, the authorising officer may give them orally.
15 Para. 4.14 of the Code of Practice provides that an application should be in writing and should record the reasons why the authorisation is necessary and the grounds listed at s.29 (3), the reasons why the authorisation is considered proportionate to what it seeks to achieve, and various details, including the nature of the CHIS tasking and any potential collateral intrusion. See separate legal guidance chapter on Tasked witnesses and CHIS.
16 Section 29 (2): the requirement that the authorisation is believed to be necessary.
17 Section 29 (5): CHIS tasking requirements (welfare of the source; handling officer; record-keeping etc)
18 Records are to be kept in accordance with the Regulation of Investigatory Powers (Source Records) Regulations 2000.
19 Duration: oral authorisations in urgent cases, 72 hours s.43 (3) of RIPA.
20 In all other cases except juvenile sources (see below), CHIS authorisations last for 12 months from last grant or renewal.
Juvenile sources
21 This means sources under 18 years: Regulation of Investigatory Powers (Juveniles) Order 2000 contains additional safeguards.
22 Para. 3.14 of the CHIS Code of Practice also refers to additional safeguards.
23 Order, Para. 6: authorisation must be given by at least Assistant Chief Constable rank it lasts one month, renewable for a further month.
Authorisation - Undercover Officers, Test Purchasers and Resident Sources
24 The authorisation process covers covert human intelligence sources of all types, including undercover police officers <refer to guidance on undercover officers in this section>, test purchasers <refer to guidance on test purchasers in this section>and resident sources <refer to guidance on resident sources in this section>.
Authorisation Decoys
25 A "decoy" is an appropriately trained law enforcement officer who places him/herself passively in a position where he/she seeks to become the intended victim of a crime for the purpose of securing the arrest of the offender.
26 If the officer's role is entirely passive and does not involve any verbal exchange with the target, no authorisation under the RIPA is necessary.
27 Where dialogue with the target is to be entered into, the officer becomes a covert human intelligence source whose use and conduct must be authorised accordingly.
Authorisation Participating Sources
28 The authorisation process also covers participating sources. A participating source is a source who is, with the approval of a designated authorising officer, permitted to participate in a crime which others already intend to commit.
29 The source must act within the parameters laid down by the authorising officer or risk prosecution.
30 There is no specific provision for this type of activity within RIPA it is dealt with as part of CHIS, although the Code of Practice does refer to participating sources at para 2.10. <See Police/CPS liaison, below in this section>
http://www.homeoffice.gov.uk/crimpol/crimreduc/regulation/part2/part2.html
Extent of permissible participation
31 The common law position: (R.v. Birtles 53 Cr.App.R,469).
32 Principles appear consistent with European case law: Ludi v- Switzerland (1992) 15 EHRR 173
33 Acceptable limits of police activity, see: R v Loosely [2002] 1 CR. App. R. 29. Action that goes beyond these limits may amount to incitement by the police and entrapment (see below).
34 The courts have sanctioned the use of sources to participate in a crime planned or already laid on, provided that the source only plays a minor role and is at all times acting with the intention of assisting the police to prevent the commission of the crime or to arrest the principal offenders. The source must act within the parameters laid down by the authorising officer or risk prosecution.
35 Most participating sources will expect their anonymity to be preserved and few will be willing to give evidence. <Refer to evidential considerations below in this section>, for guidance concerning the legal and evidential implications of the use of participating sources.
Guidance
Resident Sources
36 A resident source is an individual who has been an active participant in a serious crime or a succession of serious crimes who (usually after arrest or conviction) elects to identify, give evidence against and provide intelligence about fellow criminals involved in those or other offences. Unsentenced sources would be sentenced by the courts but would anticipate receiving a reduced sentence as a result of their assistance.
37 Resident sources are colloquially known as "supergrasses" but are referred to within the prison system as protected witnesses.
38 Financial arrangements for resident sources are not a matter for the CPS and prior liaison need not take place unless the resident source is involved in an item of expenditure beyond everyday needs. In such circumstances police should liaise with the CPS to obtain advice on the risk of prejudice.
39 The prime concern of the CPS is that nothing should be done which could be interpreted by the court as an inducement which may then prejudice a future trial. Home Office Circular guidance sets out certain procedures to be followed if it is necessary to secure the source's temporary release from prison to enable him to assist police enquiries.
Debriefing
40 There is no statutory framework relevant to the process of debriefing resident informants. The Metropolitan Police Force has a guidance booklet, which has formed the basis for the preparation of an ACPO document that is awaited.
41 Once a resident informant is in police custody a three-stage process commences.
42 Firstly, the resident informant will be interviewed thoroughly as a suspect to cleanse him/her of all aspects of his/her criminality, not just those allegations leading to arrest, before the debrief process commences.
43 Secondly, the resident informant is debriefed to obtain a full account of the evidence and intelligence the individual wishes to provide against fellow criminals. This debriefing process will be recorded in longhand and should also be audio-taped. The requirement to tape is now a legal requirement following R.v. Drury, Clark [2001], Crim.L.R. 847, Court of Appeal, which established that Code E of PACE does apply to this process. This debriefing will provide the basis from which a subsequent witness statement will be drafted.
44 The third stage is the preparation of a witness statement based on the material generated from the debriefing process.
Debriefing Procedure
45 If the resident informant does mention any of his own criminal activity not covered in the cleansing interviews, the debriefing process should be suspended. He should then be formally arrested, cautioned, interviewed in accordance with PACE and further charged with any offences revealed.
46 It is important that the officers involved in the debriefing process are distinct from the investigating officers. Similarly, any contact between the debriefers and the investigating officers should be minuted. The Senior Investigating Officer should be present at any briefing given to the officers who will carry out the debrief. The CPS should request to be present. If this is not possible, the local force should be asked to consult the CPS before any variation to the approach agreed upon is adopted that may affect the future admissibility and credibility of the process.
47 Any guidance the local force obtain from other forces with greater experience in this area should be confirmed in writing to ensure that there is a written reference point for the police, CPS and counsel to use throughout the process.
48 In all cases where there is a debrief process, the prosecution team should keep a separate log or schedule to confirm exactly what material flows from the process, when it is served and in what form.
Debriefing unused material
49 It is likely that there will be sensitive material emerging from a debrief given that it comes from a resident informant. CPS and counsel must start to consider PII material as soon as possible. The police must set out full details in the sensitive unused material schedule and supply copies for CPS, then counsel to consider. The prosecution must be proactive and work closely with the Court Service to seek the early appointment of the trial judge in order to seek early PII rulings where appropriate. The prosecution should also make applications for preparatory hearings where desirable. See CPS Disclosure Manual and protocol on the Disclosure of Unused Materials on CPS infonet.
Undercover Police Officers
50 Just as the need for covert sources in the prevention and detection of crime is recognised, so too is the need for undercover police work, where an undercover police officer may even participate in the commission of the offence. Prosecutors will approach these cases in exactly the same way as those involving sources, in that the exact role played by the undercover officer will have to be examined.
51 Unlike covert sources, however, additional consideration will have to be given to whether the undercover officer should be called to give evidence.
Evidential considerations
52 Operations involving participating sources or undercover officers will place individuals at great personal risk if they are compromised. The police will be reluctant to mount such operations with a view to a prosecution if they will be unable to rely upon evidence gathered following such an operation. In determining the admissibility of evidence gathered following a covert operation regard must be had to section 78 of the Police and Criminal Evidence Act 1984. (Archbold, 15-452)
53 Defendants have on occasion sought to rely on section 78 in an attempt to exclude evidence gathered as a result of a covert operation on the basis that there has been an element of entrapment. (Archbold, 15-513 to 521)
Entrapment: caselaw
54 In R.v. Smurthwaite, R. v. Gill [1994] 1 All ER 898 which involved undercover officers posing as hired killers, the Court of Appeal held that the relevant factors for the court to consider when applying the exclusionary discretion in section 78 of PACE included:
a. whether the undercover officer was acting as an agent provocateur in the sense that he was enticing the accused to commit an offence he would not otherwise have committed;
b. the nature of any entrapment;
c. whether the evidence consists of admissions to a completed offence or relates to the actual commission of an offence;
d. How active or passive the officers role was in obtaining the evidence;
e. Whether there is an unassailable record of what occurred or whether it is strongly corroborated;
f. Whether the officer abused his (undercover) role to ask questions which ought properly to have been asked as a police officer in accordance with the PACE Codes.
55 The ECtHR has made it clear that it is not necessarily a requirement of a fair trial that evidence obtained through an undercover operation should be excluded.
a. Schenck v- Switzerland (1988) 13 EHRR 242 - rules on the admissibility of evidence were primarily a matter for regulation under national law and that the courts task was to determine whether the trial as a whole was fair a test not dissimilar to that adopted when exercising the section 78 exclusionary discretion. This was re-affirmed in the case of Khan v- United Kingdom (ECHR Applcn.No.35394/97, [2000] Crim.LR 684.
b.In Ludi v- Switzerland (1992) 15 EHRR 173, the court refused to find that the use of an undercover agent infringed the applicants Article 8 rights (to privacy) as he was a suspected member of a large group of drug traffickers in possession of 5 kilos of cocaine, "and must therefore have been aware from then on that he was engaged in a criminal act.and that consequently he was running the risk of encountering an undercover police officer whose task would in fact be to expose him.
c. R v Loosely; A-Gs Ref (No 3 of 2000) [2002] 1 CR. App. R 29. - the HL reviewed the current state of the law on entrapment and the limits of acceptable police conduct in delivering judgements on two related appeals. Both cases involved the supply of prohibited drugs to undercover officers following circumstances where the officers had been proactive, to varying degrees, in the course of their dealings with the defendants.
d. The appeals addressed two principal issues:
i. What conduct by agents of the state (i.e. undercover officers or paid informers) would constitute entrapment such that either a prosecution based on that evidence should be stayed as an abuse of process, or the evidence should be excluded under section 78 of PACE. The HL made a distinction between state-created crime which is unacceptable and improper, and the situation when a person freely took advantage of an opportunity to break the law, given to him by a police officer. Lord Hoffman said the only proper purpose of police participation is to obtain evidence of criminal acts which they suspect someone is about to commit or in which he is already engaged. It is not to tempt people to commit crimes in order to expose their bad characters and punish them. In Looseleys case the HL held that there was no objection to the police posing as drug-users to trap an active drug dealer. In the other case (A-Gs Ref (No 3 of 2000)) the court held that there was an abuse of process where the defendant, who had never dealt in drugs, was induced to procure heroin for an undercover officer. The HL laid out guidelines for when a court could stay proceedings as an abuse of process.
ii. The extent to which the powers to stay proceedings or exclude evidence under section 78 have been modified by Article 6 of the European Convention on Human Rights? The HL concluded that they have not been modified, and that there is no appreciable difference between ECHR Article 6 case law, and English case law on section 78.
56 Another important principle in this area is that the court must never be knowingly misled. For example, reference should not be made to "a person unknown" where that person was in fact a participating source or undercover officer whose identity was well known to the police.