In this series we study Covert Investigation as a means to detection. This includes why investigate covertly, the drawbacks, directed and intrusive surveillance, interception of communications, mobile phones, computers, CHIS's and the legal issues including the effect of the Human Rights legislation.

The articles are excerpts from a new book from Blackstone's, 'Covert Investigation' 2nd Edition, written by two highly experienced former detectives (see 'About the Authors' at the end of the article).

What Significant Case Law Applies to CHISs?

In the absence of precise statute prior to RIPA, the lawful parameters around informers, infiltration, and the use of test purchase as an evidence-gathering mechanism were determined by case law. RIPA is largely silent on CHISs other than to provide the framework for authorization and the risk management regime.

General endorsement for the deployment of informers and undercover investigators was approved in R v Birtles: 'whilst the police are entitled to make use of information concerning an offence already laid on and while . . . it may be proper for the police to encourage the informer to take part in the offence . . . the police must never use an informer to encourage another to commit an offence which he would not otherwise commit' ([1969] 1 WLR 1047; and confirmed in R v Horseferry Road Magistrates Court ex p Bennett (No. 1) [1994] 1 AC 42).

The value of informers to the authorities recognised in Birtles has continued to be acknowledged. In R v King (1998) 7 Cr App R (S) 227, Lane LCJ opined:

One of the most effective weapons in the hands of the detective is the informer. Once the identity of a suspect can be established, even if he does not confess, it will often be possible to obtain scientific or other evidence to connect the suspect with a crime and so corroborate the informer. It is to the advantage of law abiding citizens that criminals should be encouraged to inform upon their criminal colleagues.

The wider benefit to society of this form of covert investigation was also remarked upon by Woolf LCJ in R v J [2001] 1 Cr App R (S) 79:

In the battle against drugs it is absolutely essential that the prosecuting authorities are given information which can help to lead to the detection of others who are engaged in this trade. The courts must do what they can to assist those who are involved in trying to combat the ever growing trade in drugs by giving incentives to those who are convicted and come to be sentenced to provide information.

In R v Clarke (1985) 80 Cr App R 344 the court accepted that motive was irrelevant to the liability of an accessory to the fact, but held that it was 'quite another thing to conclude . . . that conduct which is overall calculated and intended not to further but to frustrate the ultimate result of the crime is always immaterial and irrelevant'. In essence this provides a mechanism outside RIPA for rendering lawful behaviour that would otherwise be unlawful, which should be viewed within the context of para 2.10 of the Code.

Further information and reading

The issues raised by R v Clarke are considered in a wider context in B Fitzpatrick, 'Covert human intelligence sources as offenders: the scope of immunity from the criminal law' Covert Policing Review (2005), 15–32.

It is helpful to consider the numerous key cases thematically. They draw some very fine lines between what is acceptable and what is not.

Agents provocateurs

It is a fundamental principle that CHISs, be they (participating) informers or undercover investigators, should never incite the commission of a crime. Participating informers, as seen in the general authority of R v Birtles, may only participate in offences which are already laid on, i.e. are already planned. Their role should only be minor.

An agent provocateur is defined in R v Mealey and Sheridan [1974] 60 Cr App R 59 at 61, quoting the 1928 Royal Commission on Police Powers (Cmd 3297): 'a person who entices another to commit an express breach of the law which he would not otherwise have committed and then proceeds or informs against him in respect of such offence'. This sets the boundary of unacceptable behaviour.

But in also defining what was acceptable, the same judgment held that a person infiltrating a criminal organization, either as an undercover investigator or as a participating informer, must show a 'certain amount of interest and enthusiasm' for the proposed criminality in order to maintain their cover and render the infiltration tactic effective.

Teixeira de Castro v Portugal (1999) 28 EHRR 101 provides a clear example of investigators who went too far. Two undercover investigators posed as drug addicts and asked Teixeira to supply them with heroin. He had no heroin in his house, being a dealer in cannabis, but the investigators took him to another house and persuaded him to buy heroin there in order to sell it to the investigators. The Strasbourg court held that the investigators had incited the commission of an offence that would not otherwise have been committed.

Likewise in R v Moon [2004] EWCA Crim 2872, investigators were held to have encouraged Moon, a mere drug user, to become a supplier and so commit more serious offences that she would not otherwise have committed. Her conviction was quashed on appeal. Moon took a contradictory view to an earlier judgment, R v Coutts-Jarman [2001] EWCA Crim 2376, in which the Court of Appeal upheld the conviction for supplying drugs in circumstances where investigators had made six, increasingly pressurised demands for Coutts-Jarman to sell them drugs, the last demand 'reinforced' with the claim that the partner of the intending purchaser was in serious withdrawal.

The investigators in R v Edwards [1991] Crim LR 45 adopted a more passive role, making a test purchase which, far from being the isolated instigation argued by the defence, was demonstrably within the context of a wider pattern of drug dealing by the suspect.

Behaviour that similarly fell short of constituting incitement was confirmed in R v Pattemore [1994] Crim LR 836, in which the defendant had acquiesced with the requests of an informer. The court held there had been no pressure applied to the defendant and that fairness to the defence had to be balanced in this case by fairness to the public.

Specifically in relation to test purchase operations, DPP v Marshall and Downes [1988] 3 All ER 683 established that the tactic itself was not deception just because investigators did not reveal their true identities. The tactic itself was reaffirmed as legitimate in Borough of Ealing v Woolworths Plc [1995] Crim LR 58, which also held that deploying an eleven-year-old boy to try to purchase products restricted to persons over eighteen years old was legitimate where the test purchaser had passively sought a purchase rather than actively tried to persuade the retailer.

Courts have taken notice of test purchase operative behaviour in determining investigators have incited an offence. Acting like an ordinary customer was taken to include the use of aggressive language in R v Chandler [2001] EWCA Crim 3167. In R v Byrne [2003] EWCA Crim 1073, the court noted that investigators had done nothing to tempt Byrne 'to move outside her usual way of life' (at para 12).

Code para 4.29 makes it clear that where the individual undertaking a test purchase is not required to establish or maintain a relationship for that purpose, then the operation does not require RIPA authorization. An example might be a trading standards investigator purchasing retail items misleadingly labelled to prove that they were offered for sale. Where a test purchase operation is intended to demonstrate a pattern of drug dealing, invariably the undercover investigators will have to establish a relationship with the dealer in order to maintain their cover as a regular drugs user. Therefore such operations require the investigators to be authorized as CHISs.

Case law criteria establishing whether an informer has acted as an agent provocateur

(1) Was a crime of the same kind as that charged already afoot at the time of the intervention of the CHIS?

(2) Had the defendant committed an offence of a class which he would not have committed but for the encouragement of the CHIS?

(3) Had the defendants a propensity to engage in the crime charged?

(4) Did the CHIS play a major part in the criminal activity?

(5) Is the Court certain, in retrospect, of the CHIS's reliability?

(6) Was the CHIS's participation approved in accordance with the statutory regime?

(7) Is the offence so grave that the public interest could justify the use of such tactics?

Based on R v Ameer and Lucas Crim LR [1977] 104. The judgment in R v Ameer and Lucas was disapproved by R v Sang [1980] AC 402, at 430, but this seven-part test applied in the case still has relevance.

About the authors: Clive Harfield is Associate Professor of Law at the University of Wollongong, NSW. He previously served with the National Crime Squad and as a Detective Inspector and BCU Intelligence and Covert Operations Manager for Warwickshire Police. Karen Harfield is a Senior Executive with the Australian Crime Commission who previously served with HM Inspector of Constabulary and as Head of Intelligence for Warwickshire Police. Clive and Karen Harfield are also co-authors of 'Intelligence', another Blackstone's Practical Policing title.

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