Monday, 1 November 2021

Criminal conduct authorisations within the UK

The European Convention on Human Rights Article 2 requires that everyone's life shall be protected by law. The article continues - "Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection."

The Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (legislation.gov.uk) - fully in force since 30 September 2021 - is lawful authority for a Police Force, the National Crime Agency, the Intelligence Services, the Armed Forces, Revenue and Customs. the Home Office and several other bodies - to approve a Covert Human Intelligence Source (a CHIS) to commit ANY criminal offence. If the CHIS acts in accordance with the authorisation then it will be lawful for all purposes.

I have put the word ANY in upper case / bold because

even the most serious criminal offences (treason, murder, torture, terrorism offences etc) could be authorised subject to some safeguards in the Act.

A criminal conduct authorisation must be necessary (a) in the interests of national security, (b) for the purpose of preventing or detecting crime or preventing disorder, or (c) in the interest of the economic well-being of the United Kingdom.  Authorised conduct must also be proportionate to what it seeks to achieve.

The Act requires authorisations to be notified, within 7 days, to a Judicial Commissioner. There is also provision for oversight by the Investigatory Powers Commissioner.

The government argues in an 8 page document that the Act is compatible with the European Convention on Human Rights. The Policy Background section of the Explanatory Notes informs us that CHIS will never be given unlimited authority to commit any and all crimes: authorisations must be "necessary, proportionate and specific." Further, all public authorities are bound by the Human Rights Act to act in a way that is compatible with Convention rights. Then we are told that the Act does not prevent prosecution of a CHIS who acted outside the parameters of an authorisation. One wonders how many such prosecutions will take place in practice.

The legal background to the Act is also set out in the explanatory notes. This informs us that activity that may be authorised under the Act was previously authorised using a variety of legal bases - (they are not set out). 

For all the supposed safeguards, the fact remains that the State has now acquired a clear legal power to authorise ANY criminal offence within the United Kingdom. 

At least to me, it seems a strange form of compatibility with the Convention, given that ANY criminal offence could be authorised. Basically, we are expected to trust those in power not to misuse their power.

It should also be borne in mind that protections for human rights within the UK are in the sights of the present government - post 17 October.

Undercover Policing:

The Undercover Policing Inquiry - set up 6 years ago - continues.

Articles:

Please see the posts by David Allen Green on his Law and Policy blog - here and here. Mr Green concludes by writing - 

"The possibility of misuse is such that there should be anxious scrutiny of these powers and immunities.

The United Kingdom state does not say that it wants to kill people.

But by granting itself - and its officials and operatives - immunity from any legal liability, it is creating a situation where there is no legal disincentive from ensuring unlawful deaths do not happen."

Materials:

The Act - Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (legislation.gov.uk) - the Act achieves its aim by amending the Regulation of Investigatory Powers Act 2000 (legislation.gov.uk)

Explanatory Notes - Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (legislation.gov.uk)

Who may authorise a CHIS to commit criminal offences?  There is a considerable list - HERE.

Criminal Conduct Authorisation Process Factsheet (publishing.service.gov.uk)

Covert human intelligence sources: criminal conduct - House of Lords Library (parliament.uk)

Further information on the provisions governing the granting of CHIS status and authorising CCAs can be found in the House of Commons Library briefing: ‘Covert Human Intelligence Sources (Criminal Conduct) Bill 2019–2021’ (2 October 2020).


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