Consultation on Home Office proposals to update

the covert human intelligence sources code of

practice and the covert surveillance code of practice
Response from Netpol Network for Police Monitoring.
There are significant public concerns about the use of Covert Human Intelligence
ources !CHI". #ccor$ing to a %&'' (ustice report
'
) *+),'- covert human
intelligence sources were recruite$ between %&&& an$ %&'&) inclu$ing '),'. b/ non0
law enforcement bo$ies such as government $epartments an$ local authorities.
1etween %&&' an$ %&'&) some ''%& complaints were ma$e to the IPT concerning
unwarrante$ or e2cessive surveillance b/ public bo$ies. 3ut of more than ')&&&
complaints over the last $eca$e) onl/ '& have been uphel$ b/ the Tribunal.

In a$$ition) a number of ver/ serious allegations have been ma$e relating to the
behaviour of un$ercover officers infiltrating protest groups.
4amian 5reen) Minister of tate for Policing) Criminal (ustice an$ 6ictims) claims
that 7significant changes8 have been ma$e to the Covert Human Intelligence ources
Co$e of Practice publishe$ for public consultation.
These inclu$e9
enhance$ :u$icial oversight of all un$ercover law enforcement $eplo/ments)
re;uiring prior approval b/ the 3ffice for urveillance Commissioners for all
long term $eplo/ments<
the $efinition of 7relevant source8 as a particular t/pe of CHI) being a source
hol$ing an office) rank or position within relevant public authorities<
enhance$ authori=ation for the use of 7relevant sources8 at the level of
#ssistant Chief Constable) an$ at the level of Chief Constable > #ssistant
Commissioner for long term authorisation !more than '% months".
1 Justice: Freedom from Suspicion: Surveillance Reform for a Digital Age, October !11
5iven the wi$esprea$ public concern about ?un$ercover policing@ the scope an$
e2tent of the propose$ amen$ments is $isappointing. Ahile we welcome
improvements to authorisation arrangements an$ oversight) the amen$e$ co$e $oes
not a$$ an/ $etail regar$ing who constitutes a legitimate sub:ect of surveillance) nor
$oes it tackle the nature of the relationships that officers an$ other covert human
intelligence sources !CHI" are permitte$ to engage in.
The broa$ nature of the authorisation criteria continues to provi$e e2cessive latitu$e
in $ecision making) an$ provi$es insufficient gui$ance for interpreting the
proportionalit/ of CHI $eplo/ments. In short) the amen$ments provi$e little in the
wa/ of reassurance that the 7historic8 cases of unethical use of surveillance will not
be repeate$.
Maintaining relationships
The Metropolitan Police 3peration Herne report b/ Cree$on an$ Macka/
%
foun$
??there are an$ have never been an/ circumstances where it woul$ be appropriate
for such covertl/ $eplo/e$ officers to engage in intimate se2ual relationships with
those the/ are emplo/e$ to infiltrate an$ target.@
The report also conclu$e$ there ha$ been ?an ab:ect failure of the $eplo/ment) a
gross abuse of their role an$ their position as a police officer an$ an in$ivi$ual an$
organisational failing)@
It is therefore surprising an$ concerning that there are no amen$ments to the CHI
co$e un$er the section Establishing, maintaining and using a relationship !%.'* of
co$e". The $escription of a 7relationship8 as the inoffensive an$ largel/ at/pical
e2ample of the relationship between shopkeeper an$ customer is grossl/
ina$e;uate.
The co$e fails to recognise the compelling allegations of inappropriate intimate an$
se2ual relationships entere$ into b/ un$ercover police. There is no gui$ance on
whether such relationships are permitte$) or the circumstances in which the/ ma/ be
consi$ere$ proportionate.
# new section of the CHI co$e 7Legend building8 !%.'. of the co$e") states that) in
relation to activities re;uire$ to 7buil$ up their cover profile8 consi$eration shoul$ be
given to an authorisation un$er the %&&& #ct. There are no limitations on the actions
that ma/ be taken for this purpose) or the circumstances in which a prior
authorisation woul$ be consi$ere$ necessar/.
Ahilst appreciating the sensitivit/ of the sub:ect) we believe the Co$e must provi$e
some clarit/ in this area. Ae woul$ like to see a categorical statement) reflecting
the position a$opte$ in the Herne Report ;uote$ above) that entering into se2ual
relationships for the purposes of obtaining information or buil$ing>maintaining cover
is neither acceptable nor lawful. If that is not the position a$opte$ b/ the
government) the co$e must reference the e2tent to which) an$ the broa$
circumstances in which police officers are permitte$ to engage in such behaviour.
Operation "erne # Report : Allegations of $eter Francis %Operation &rinit'(
Authorisation Criteria
The Co$e of Practice provi$es no a$$itional or revise$ gui$ance on the application
of authorisation criteria lai$ $own b/ section %+!*" of RIP#. This is a particularl/
$isappointing omission.
ection %+!*" authorises CHI for !amongst other purposes" the prevention or
$etection of crime an$ the prevention of $isor$er. Preventing an$ $etecting crime
goes be/on$ the prosecution of offen$ers an$ inclu$es actions taken to avert) en$
or $isrupt the commission of criminal offences.
This categor/ of offences is e2tremel/ broa$) potentiall/ permitting the use of long
term CHI $eplo/ment to $isrupt minor offences.
The #ct $oes not $ifferentiate un$ercover police officers from other categories of
CHI. The creation of the $efinition) in the Co$e of Practice) of a $istinct group of
CHI 7relevant sources8 provi$es an opportunit/ to present more $etaile$
gui$ance on the t/pes of criminalit/ that woul$ :ustif/ the use of un$ercover officers.
Ae consi$er that it can never be proportionate to $eplo/ un$ercover police officers
in relation to minor crime or $isor$er. Ae therefore suggest that the Co$e shoul$
contain e2plicit gui$ance restricting the use of 7relevant sources8 to the prevention or
$etection of serious crime.
Infiltration of political groups
The 3peration Herne report) publishe$ in March %&'.) state$<
A source known as Officer A claimed in The Observer in March !"! that the
#$# %#pecial $emonstration #&uad' targeted black campaigns that had been
formed in response to deaths in police custod(, police shootings and serious
racial assaults) Officer A also added that once the #$# got into an
organisation it is effectivel( finished) This effectivel( made *ustice harder to
obtain)
Operation +erne has identified that undercover officers were tasked into
groups to provide intelligence regarding potential public disorder) This
included both left and right wing groups and organisations and animal rights
groups) A tactic of entr(ism was used b( activists to promote their own political
agendas) ,t was inevitable that undercover officers would find themselves
reporting on these groups that would become embroiled with their target
organisation)
There are occasions where undercover officers sought and recorded material
that would now be considered as personal information) At that time, there was
no relevant legislation to regulate such action , in the absence of a definition of
the concept of collateral intrusion,) #$# undercover officers were not
gathering evidence to support criminal investigations, but intelligence to
prevent public disorder and criminalit()
Ae $o not consi$er this to be a historic problem. #ctivists have e2presse$ their
belief that un$ercover officers working up until %&&+ also collecte$ personal
information on political activists uninvolve$ in criminalit/) $isrupte$ the lawful
functioning of groups) an$ the engagement of in$ivi$uals in lawful activit/.
In a$$ition we are concerne$ at reports
*
that in$ivi$uals associate$ with protest
groups are being recruite$ as CHI. People engage$ in lawful protest are sub:ect to
unacceptable levels of $oubt over the circumstances in which the/ or their
colleagues can be approache$ b/ police to provi$e information. uch acts have a
significant chilling effect on the right to protest.
Remarkabl/) consi$ering that the police have particular responsibilities to refrain
from unnecessar/ interference with rights to free$om of assembl/ an$ e2pression)
there is no gui$ance in the co$e relating to CHI an$ political activit/. Ae consi$er
that this is a serious omission) an$ that the responsibilit/ of police to respect the
right) set out in the Human Rights #ct) to peaceful protest shoul$ be ma$e e2plicit in
the gui$ance.
Netpol March 2014
Aout Netpol the Net!or" for #olice Monitoring
The Network for Police Monitoring !Netpol" seeks to monitor public or$er) protest
an$ street policing that is e2cessive) $iscriminator/ or threatens civil rights. Ae are a
network of activists) campaigners) law/ers an$ researchers sharing knowle$ge)
e2perience an$ e2pertise to effectivel/ challenge policing strategies which are
unnecessaril/ $amaging to an/ sector of our societ/.
Netpol can be contacte$ at infoBnetpol.org or at
Network for Police Monitoring !Netpol"
c>o Newham Monitoring Pro:ect
Harol$ Roa$ Communit/ Centre
'C& Harol$ Roa$
Dpton Park
Eon$on F'* &F
) See for e*ample &+e ,uardian, $olice tec+ni-ues for recruiting and running informants revealed 1st
.arc+ !1/