Manuals, training courses and codes of practice re undercover policing in Britain provide a glimpse into the ‘rules’. Here is the latest course on undercover policing by the College of Policing: it covers Covert Human Intelligence Sources (spycops) and is aimed at their supervisors. Here is the Government’s (Home Office) Code of Practice policy document re undercover policing. Finally, the following manual (last updated August 2015) is taken from the Met’s training course on undercover (covert) policing and is quoted in full. But these documents don’t tell the complete story: in the real world rules are broken, authorisation can be escalated, and the lives of ordinary citizens are abused and ruined.
Note: Carlo Neri (photo above) is the latest spycop to be spectacularly exposed and is the alias of an undercover police officer who infiltrated the Socialist Party and anti-fascists groups. He was active from 2001 to 2006 and based in north and central London – which makes it likely he served with the Special Demonstration Squad. For more on him, click here.
The public expect law enforcement agencies (LEAs) to use all available powers and tactics to prevent and detect crime or disorder and maintain public safety. There are a number of covert tactics available to law enforcement ‒ undercover policing is one of them. Applied correctly, and supported by appropriate training, it is a proportionate, lawful and ethical tactic which provides an effective means of obtaining evidence and intelligence.
Undercover operatives (UCOs) hold an office, rank or position in an LEA. The role of UCO is voluntary. They are selected, vetted, trained and accredited to gather evidence and intelligence. UCOs are deployed under direction in an authorised investigation or operation in which their true identity is concealed from third parties.
For further information see section 26 Regulation of Investigatory Powers Act 2000 (RIPA).
Principles and standards
UCOs are bound by the code of ethics for policing and are subject to the regulations and discipline code governing conduct in their respective LEA. Additionally, the national code of conduct for UCOs sets out the professional and personal standards which all UCOs must adhere to. A chief officer is responsible for overseeing adherence to both of these codes.
Section 26(8) RIPA provides the legal framework for the lawful deployment of UCOs as covert human intelligence sources (CHIS). The Regulation of Investigatory Powers (Source Records) Regulations 2000 state that:
an undercover operative means a source who holds an office, rank or position with a relevant investigating authority.
More recently, the Regulation of Investigatory Powers (Covert Human Intelligence Sources: Relevant Sources) Order 2013 further clarifies a UCO as a relevant source within a number of defined LEAs. These relevant sources operate at a higher level of scrutiny and management. This creates a distinction between a public CHIS and a law enforcement operative performing the role of a UCO.
In addition to RIPA, undercover activity is continually influenced and shaped by case law (decisions made in higher courts).
For further information see:
- Home Office (2014) CHIS Code of Practice
- Articles 2, 6 and 8 of the European Convention on Human Rights (ECHR) (recognised by the Human Rights Act 1998)
- Criminal Procedure and Investigations Act 1996 (CPIA)
- Coroners and Justice Act 2009
- Section 78 Police and Criminal Evidence Act 1984 (PACE)
The use and conduct of a UCO, when regarded as a relevant source, is subject to individual authorisation under RIPA, which requires authorisation from at least an assistant chief constable (ACC), or equivalent, and notification to the Surveillance Commissioner. If the case is urgent, a superintendent can authorise the request. In certain circumstances, and in any case where an authorisation is likely to be required for more than one year, a chief constable, or equivalent, must obtain prior approval from the Office of Surveillance Commissioners before authorising the deployment.
The person applying for authorisation (the applicant) and the authorising officer must consider the necessity for the use of the tactic, the proportionality of the deployment of a UCO and the collateral intrusion on any individual’s private life, against the need for the activity.
RIPA stipulates that the authorising officer must believe that an authorisation for the use and conduct of a UCO is necessary in the circumstances of the particular case on one or more of the statutory grounds listed in section 29(3) of RIPA, ie, for the purpose of preventing or detecting crime or of preventing disorder.
Measures should be taken, wherever practicable, to avoid or minimise interference with the private and family life of those who are not the intended subjects of the UCO activity. Where such collateral intrusion is unavoidable, the activities may still be authorised providing this collateral intrusion is considered proportionate to the intended aims of authorised activity. Any collateral intrusion should be kept to the minimum necessary to achieve the objective(s) of the operation or investigation.
All undercover (UC) deployments are regularly reviewed and cancelled when no longer required.
For further information see Home Office (2014) CHIS Code of Practice Chapter 3 ‒ General Rules on Authorisations.
Supervision of undercover operatives
When a UCO is deployed, there will always be:
- a cover officer with day-to-day responsibility for dealing with the UCO and their security and welfare
- a UC covert operations manager with general oversight of the use made of the UCO
- records created and maintained.
This supervision process ensures that the UCO operates within the parameters of their authorisation.
For further information see:
- section 29(4) RIPA
- section 29(5) RIPA
- Home Office (2014) CHIS Code of Practice Chapter 6 – Management of CHIS
- Home Office (2014) CHIS Code of Practice Chapter 7 – Keeping of Records
Oversight and governance
Owing to the nature of undercover policing, and in addition to the authorising officer, there is an extensive framework of internal and external oversight and governance. This is outlined by legislation, together with the need to identify, manage and promote good practice.
Senior responsible officer
Within every relevant LEA a senior responsible officer (SRO), at chief officer level, must be responsible for the integrity of the process used for the management of UCOs within the public authority for the management of UCOs. The SRO is also responsible for compliance with Part II of RIPA (surveillance and covert human intelligence sources) and the code of practice, in liaison with the Office of Surveillance Commissioners (OSC).
Office of Surveillance Commissioners
The OSC provides independent oversight and holds LEAs to account. It monitors the use of powers granted by Parliament by conducting annual inspections of all LEAs in respect of RIPA compliance. The OSC is notified of all undercover authorisations and conducts specific inspections of authorisation of UCOs prior to renewal, as part of the prior approval process.
For further information see Home Office (2014) CHIS Code of Practice Chapter 9 – Senior Responsible officers and oversight by commissioners.
Investigatory Powers Tribunal
The Investigatory Powers Tribunal was established by RIPA. It is responsible for considering complaints about the use of a number of intrusive powers used by intelligence services, LEAs and public authorities. It is independent of law enforcement and government and comprises senior members of the judiciary and the legal profession. It has full powers to investigate and decide any case within its jurisdiction.
For further information see Home Office (2014) CHIS Code of Practice Chapter 10 – Complaints.
Crown Prosecution Service
A memorandum of understanding (MoU) has been developed to ensure consistent and thorough handling of cases involving UCOs where a criminal prosecution may result. This MoU has been signed by the Crown Prosecution Service (CPS), the Association of Chief Police Officers (ACPO) (now the National Police Chiefs’ Council (NPCC), the Serious Organised Crime Agency (SOCA) (now the National Crime Agency (NCA)) and Her Majesty’s Revenue and Customs (HMRC).
The agreement directs that close and early liaison between relevant organisations takes place so that the best evidence is gathered for prospective court cases, and more criminals are brought to justice. It ensures that investigators and prosecutors work closely together from the outset of any relevant covert operations and that all necessary actions are carried out and documented, so that this very complex area of law is consistently and thoroughly adhered to by all those involved.
The MoU applies whenever:
- there is a use and conduct authorisation for the deployment of a UCO under RIPA
- the UCO has been authorised in circumstances in which a prosecution is contemplated, or where it has become apparent that there is the clear potential for a prosecution
- the investigation is being carried out (alone or jointly) by any NPCC police force, the NCA, UK Border Force or HMRC, and
- any prosecution or advice on a possible prosecution would be considered by the CPS.
National Undercover Working Group
The principle aim of the National Undercover Working Group (NUWG) is to raise standards and improve the way in which the LEAs use the tactic of undercover policing. The group addresses issues concerning the:
- strategic management of the deployment of UCOs
- psychological support that UCOs receive
- accreditation and registration of undercover units
- identification, development and promotion of good practice
- development and production of policies and procedures.
Working in partnership with the College of Policing, the NUWG is at the forefront of developments concerning national training and accepted practice.
College of Policing
The College of Policing:
- sets standards of professional practice
- identifies, develops and promotes good practice based on evidence
- supports the professional development of those working in policing
- helps police forces and other organisations to work together to protect the public and prevent crime
- identifies, develops and promotes ethics, values and standards of integrity.
They work in partnership with:
- The Home Office, which sets policing policy and the overall funding for territorial police forces. The home secretary owns national risks associated with policing.
- Chief constables, who provide operational leadership and direction to police forces. At the national level, they coordinate delivery of operational policing through Chief Constables’ Council.
- Police and crime commissioners (PCCs), who are elected by the public. They hold their chief constable to account, set the police and crime plan for the area, set the police force budget and have the power to appoint or dismiss the chief constable.
- The Mayor’s Office for Policing and Crime, which undertakes the PCC role for the Metropolitan Police Service in London, and other police governance bodies for non-territorial forces.
Her Majesty’s Inspectorate of Constabulary
Her Majesty’s Inspectorate of Constabulary (HMIC) independently assesses police forces and policing across a range of activity, from neighbourhood teams to serious crime and the fight against terrorism, in the public interest. All LEAs are subject to inspection by HMIC or equivalent.
UCOs are primarily deployed to gather evidence and/or intelligence. This material is subject to rules under the CPIA. The CPIA requires LEAs to reveal all relevant material to the prosecutor. The prosecutor has a continuous responsibility to disclose to the defence any material which might reasonably be considered capable of undermining the case for the prosecution, or of assisting the case for the defence, and which has not previously been disclosed.
Many UC deployments result in a UCO’s evidence being presented at court. In cases where the court considers that evidence presented has been obtained unfairly or through an abuse of process, the judge has the power under section 78 of PACE to exclude that evidence.
Should UCOs need to give evidence, their true identity may be protected by special measures, which can be used at the discretion of the trial judge. These measures are set out in the Coroners and Justice Act 2009.
Protection of identity and methodology
The value of undercover policing as a tactic is essential. LEAs and the communities they serves should value this body of dedicated operatives who carry out this type of work.
The role of a UCO can be dangerous. UCOs carry out their role as volunteers in the expectation that their identity will be protected during their deployment and afterwards. LEAs, prosecuting authorities and the judiciary have a duty of care to these operatives.
For further information see Articles 2, 6 and 8 of the ECHR (recognised by the Human Rights Act 1998).
Neither confirm nor deny
The established neither confirm nor deny (NCND) principle is used by LEAs to protect covert methodology, sensitive information and the identity of sources of information, eg, UCOs.
NCND is not used to hide information that the LEA does not wish to disclose. Rather, it serves to safeguard the tactics used and the lives and wellbeing of UCOs, their families and others.
In some situations, simply confirming or denying whether the LEA holds a particular category of information could itself disclose sensitive and damaging information. The principle of NCND is needed to prevent harm which may arise if LEAs have to confirm or deny whether they hold particular information.