This briefing addresses JUSTICE’s concerns with the Covert Human Intelligence Sources (Criminal Conduct) Bill. The Bill would amend Part II of the Regulation of Investigatory Powers Act and allow public bodies to authorise covert human intelligence sources (“CHIS”) to engage in criminal activities – including rape, murder and torture – with impunity.
JUSTICE would welcome placing existing Security Services’ Guidelines on a statutory footing. It is important that such measures are transparent, and that they receive appropriate parliamentary scrutiny. However, we are seriously concerned that the powers granting immunity, coupled with weak safeguards, would completely undermine the core principle of criminal law; that it should apply equally to all, both citizen and state. By passing this Bill, Parliament would approve serious violations of the European Convention on Human Rights, and set itself apart from international human rights norms.
In order to bring the Bill in line with the Guidelines, as well as the UK’s international and domestic human rights obligations and best practice, JUSTICE recommends the following:
- Delete provisions granting immunity, and instead insert language, in line with the Guidelines, that would grant CHIS (1) justification to commit specified criminal conduct but not exemption from prosecution and (2) a public interest defence.
- Guarantee that victims of CCA-related offences remain entitled to seek compensation.
- Prohibit the use of CHIS as agent provocateurs, particularly with respect to legitimate political or trade union activities, and limit the circumstances in which CCAs could be used to focus solely on disrupting serious criminal conduct.
- Prohibit CCAs for children to mitigate the risk of serious violations of both domestic and international law with respect to the rights of the child. At a minimum, the Bill should provide more robust ‘exceptional’ circumstances in which it would be appropriate for a child to be given a CCA, and how their welfare would be protected.
- Mandate prior judicial authorisation for each CCA application by Judicial Commissioners, who are already well practised in making complex assessments of sensitive material, in an independent, detached manner and at short notice.
- Strengthen the role of the Investigatory Powers Commissioner (“IPC”), who should undertake more detailed reporting and examine every CCA to assess its legality. Where the IPC detects any potential unlawful or improper use, it should refer the matter to the police.