Covert Human Intelligence Sources (Criminal Conduct) Bill — House of Lords, 2020-12-10
Topic: Law and Crime
Byron Davies (Conservative, Centre-right): My Lords, this amendment in my name seeks to address the current inadequacies in respect of protection afforded to undercover operatives. I apologise at the outset to the noble Lord, Lord Cormack, but I intend using the word "CHIS", which I also find unsuitable—I prefer the phrase "undercover operative", but I will refer to CHIS throughout my speech I seek to address the current inadequacies in respect of the protection afforded to an undercover operative when faced with a potentially life-threatening situation while engaged in an operation by inserting new subsections (8A) and (8B) into the new Section 29B of the Regulation of Investigatory Powers Act 2000. The effect of this new insertion would be to allow authorisation in certain circumstances after the event, and I will explain the circumstances as I progress. It seems clear to me from noble Lords’ contributions to the Committee—I say this acknowledging the many and varied concerns expressed by noble Lords in their contributions—that there is a tendency, indeed more than a tendency, to overlook the threats and dangers that these undercover operatives are faced with at crucial times during their deployment. It is that, and that alone, which I seek to call attention to and address with this amendment We have heard a great deal from noble and learned Lords who have considerable experience at unravelling the machinations of the criminal law, and we have, quite understandably, also heard a great deal from noble Lords who have concerns for human rights. However, little has been said that provides for the security and protection of the undercover operative, and I suggest that the operational safeguards for a CHIS are not being addressed in this Bill. We now have an opportunity to do so I should add at this point that I am of course very mindful of the criminal conduct authorisation requirements, which are set out in subsection (5) of new Section 29B, and the amendment recognises that. The amendment does not for one moment propose or recommend that a CHIS should be given carte blanche to commit serious crime—given a free ticket, as it were. It is intended to ensure that those who are prepared to risk themselves for the benefit of the state should be afforded the comfort of knowing that, when they embark on a particularly serious operation, they have the full support of the law behind them at the outset, given that they may be operationally forced into a situation where they are required to take a course of action to avert or mitigate a threat to their physical safety or that of some other person which results in them committing a criminal offence not previously authorised or foreseen It will doubtless be maintained that the law caters for and provides protection at present—we have heard during the course of the Bill that prosecutors and the courts offer a degree of protection in such situations—but I maintain that that is not good enough We have also heard, with good reason, during Second Reading and in Committee, of the need to respect the requirements of the Human Rights Act. I say that it should apply collectively and that we should be very clear that the legislation applies to all, and so we must demonstrate that in the Bill. To rely on a prosecutor’s decision or a judges’ disposition on a particular day, in the hope that, after the event, they will support any previously unauthorised but necessary and vital action by an undercover operative taken to protect him or herself, or another, is just unacceptable to my mind Having managed quite a number of successful CHIS operations in my 32 years as a front-line detective, I have seen at first hand informants, agents and undercover operatives place themselves at incredible risk. While I do not doubt for one moment that the view of those currently at the head of organisations responsible for conducting such operations has been sought and will have perhaps influenced the course of the Bill, that does not alter the reality of the situation for the operative on the ground when challenged with the protection of life. Unlike many policing procedures and operations that can be fine-tuned, undercover operations can be very unpredictable, to say the least. These operations present themselves in a variety of ways. It may be the activity of a drug-related gang—perhaps so-called county lines gang activity, where, sadly, juveniles are invariably involved as couriers; it may be an imminent threat of harm during a kidnap scenario requiring an instantaneous response; it could be an armed gang involved in robberies on high-profile celebrities while at home with their families; or it could just be a straightforward test purchase scenario that takes an ugly turn in order to test the veracity of the CHIS. These are not hypothetical cases: they are real-life scenarios that I can vouch for. Frankly, the list is endless. However, one thing is for sure: these organised criminals are, in the main, extremely violent people, often under the influence of extremely dangerous drugs which render them devoid of any sense of responsibility or fear My concern is that we should not tie the hands of undercover operatives. We should not allow them to undertake these extremely dangerous, often life-threatening roles with one hand tied behind their backs, in the sense that they fear prosecution if they follow a particular course of unanticipated action in order to protect life or prevent serious harm. They should not have the sword of Damocles hanging over them Of course, undercover operatives will be briefed and tasked; they will know what is before them, as well as can be expected on the available intelligence. However, once in theatre, as it were, they are on their own. Yes, there will be back-up not too far away, but this will not be instantaneous and will not allow for the situation where a CHIS, whether part of the criminal gang or a deployed undercover operative, may be put to an immediate test of their genuineness by organised criminals through circumstances that were not foreseen or allowed for in the planning, briefing and authorising stages Organised criminals are not, in the main, rational-thinking people. I can think of many scenarios, such as a test purchase, whereby an undercover operative is forced to partake in a class-A substance as proof of being genuine and, in the ugliest of scenarios, perhaps has a knife pressed to his or her body, with unthinkable consequences, for failing to surrender to the test. Surely, in situations such as that, where the CHIS must retain his or her credibility, they must be afforded support in the Bill. The operative should not have to rely on the good will of a prosecutor or the court. On the one hand, we are seeking in the Bill to legitimise criminal activity, yet, on the other, failing after the event to acknowledge and support the actions of a CHIS in life-threatening situations. There could be, say, an ambush attack from a rival gang, during which the undercover operative must take some immediate and previously unauthorised action to avert or mitigate a threat to life. The scenarios are endless and allowance should be made in the Bill for such eventualities in order to provide protection through law for CHIS. The question as to who authorises such previously unauthorised action is perhaps a matter for further consideration. I accept fully that that decision may rest with a person other than the initial authorising officer. It is therefore my belief that human rights and our obligation to provide a duty of care would be properly served by the amendment. I beg to move.