Since we launched our first legal case in 2011, women involved in Police Spies Out of Lives has been campaigning to ensure nothing like this can happen to other women again. In recent years, however, there has been an onslaught of new legislation that does nothing to protect women’s rights nor the right to protest free of interference from the State – quite the opposite in fact. We set out here some of the areas where we are calling for legal reform:

  1. Campaign to reform the CHIS Act [Covert Human Intelligence Sources (Criminal Conduct) Act]
  2. Sex By Deception
  3. Police, Crime, Sentencing and Courts Act

REFORMING THE ‘CHIS’ ACT / COVERT HUMAN INTELLIGENCE SOURCES (CRIMINAL CONDUCT) ACT – MARCH 2021

OUR HOME OFFICE SUBMISSION – JANUARY 2025

Section 1 of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021 (the “CHIS Act”) amends Part II of the Regulation of Investigatory Powers Act 2000 (“RIPA 2000”) to allow a range of public authorities to authorise covert human intelligence sources (“CHIS”) to commit criminal acts in certain contexts, with such acts being rendered “lawful for all purposes”. 

This means in law that no criminal offence would have ever taken place. Section 29B(4) RIPA 2000 specifies that an authorisation may be granted if the person issuing it believes the authorisation is (i) necessary in the interests of national security, preventing or detecting crime or of preventing disorder, or the UK’s economic well-being; and (ii) the authorised conduct is proportionate to what is sought to be achieved by that conduct.

This submission produced in partnership with Justice sets out three suggested reforms to the CHIS Act aimed at increasing safeguards and procedures in the interests of victims, and potential victims, who are impacted by the improper use of the powers it creates. 

1. CLEAR STATUTORY LIMITS ON WHAT CRIMINAL ACTS CAN BE AUTHORISED

The government should amend the Act to introduce statutory limits to specify types of criminal acts which are not capable of being authorised. The arguments in favour of this are as follows.

First, a list of such exclusions arguably already exists, albeit in an implicit form. This is so as under s.29B(7), the person considering the grant of a criminal conduct authorisation needs to take account the requirements of the Human Rights Act 1998. 

It was conceded by the Chief of Metropolitan Police and the National Police Chiefs Council’ in Wilson v Police Commissioner that an undercover police officer’s entering a relationship with a woman to obtain information about a group she was involved in violated her rights under Articles 3, 8 and 10 of the European Convention on Human Rights, which all UK decision-makers are required to respect under the Human Rights Act 1998. 

This concession implies that the CHIS Act framework would never permit a criminal conduct authorisation to be issued in respect of e.g. violating sexual integrity of an individual – as this too would likely contravene the Human Rights Act’s requirements. Indeed, Minister Jarvis’ letter itself follows this logic, as it states a criminal conduct authorisation “does not provide a CHIS with authority to commit all and any crime” because an authorisation “may only be granted where it is necessary, proportionate, and compliant with the Human Rights Act 1998.” It follows that s.29B(6) arguably introduces a statutory exclusion on the authorisation of certain types of criminal conduct, albeit not an express one. 

In correspondence with Police Spies Out Of Lives Minister Jarvis argues that the “CHIS Act does not list specific crimes which may be authorised, or prohibited, as to do so would place into the hands of criminals, terrorists and hostile states a means of creating a checklist for suspected CHIS to be tested against.”

However, if the HRA 1998-as-setting-limits argument is accepted, a “litmus test” for identifying CHIS already exists. Further, other jurisdictions’ equivalents of the CHIS Act do expres statutory limits, implying that their presence does not give rise to a “testing” problem severe enough preclude the possibility of gathering intelligence. 

In Canada, s.20(16) and 20(18) of the Canadian Security Intelligence Service Act 1985 stipulates that it is never justified for the person under the direction of an intelligence officer to be directed to (a) intentionally cause death or bodily harm to an individual; (b) willfully obstruct the course of justice; (c) violate the sexual integrity of another person; (d) subject an individual to torture or cruel, inhuman or degrading treatment; (e) detain an individual; (f) cause damage to property if doing so would endanger someone’s safety.

In the United States, the FBI can issue immunities from prosecution to its agents; however, it can only do so in relation to activities authorised within the express limits set out in its guidance. It also cannot instruct the US equivalent of CHIS to participate in any act of violence except in self-defence or in any act designed to obtain information that would be unlawful if committed by a law enforcement agent1.

If a CHIS is truly forced to commit a grave criminal act and exceed the limits of their authorisation so as to commit a crime, they may have a defence of duress. They would also be able to contend that their prosecution would not be in the public interest. 

2. REPLACING THE IMMUNITY WITH A DEFENCE

The second potential reform is that of replacing the CHIS Act’s immunity-based framework with a defence, where a criminal conduct authorisation serves as a defence with its proportionality and necessity being tested by the courts. 

At present, the effect of an authorisation is to render the authorised conduct “lawful for all purposes” (section 27(1) RIPA 2000). This means that a person acting in an authorised manner is issued an immunity from prosecution in advance – i.e. they will not be prosecuted, will not appear in court, and will not be held criminally liable for their actions. They will also not be civilly liable for any damage their authorised actions may cause (section 27(2)). 

The “lawful for all purposes” model carries a risk of insulating the CHIS’ activities from review of whether they exceed the scope of their authorisation, as demonstrated by the events preceding the case of R v Barkshire2. In that case, Mark Kennedy, an undercover police officer, had infiltrated a group of climate change activists and who had been involved in organising the group’s protest, in respect of which the group was later prosecuted. 

Although it was later found that Kennedy “was involved in activities which went much further than the authorisation he was given”3, his involvement in the intelligence gathering effort targeting the group or the fact that he testified against the group on their trial was not disclosed to the group’s lawyers; it was only due to timely newspaper reporting that the true nature of his involvement and the fact he exceeded his authorisation was discovered, eventually leading to the group’s convictions being quashed.

What is more, unlike Mark Kennedy, CHIS need not be employed in state agencies or trained in intelligence gathering; they can also be can be ordinary members of the public. Some of them may be involved in extremism or criminal activities outside of the scope of their authorisation. It is thus all the more important that means of oversight of whether their actions fall within the scope of their authorisation are provided.

To provide oversight over whether CHIS exceeded the authorisation they were given, an alternative approach would be to follow a “defence-based” model employed in Canada, where a person who is authorised to commit an act or omission which would otherwise constitute an offence is given a defence to such conduct should criminal proceedings arise (section 20.1(16) Canadian Security Intelligence Service Act 1985). 

Replacing the present immunity-reliant system with a defence-based approach would have the benefit of ensuring that the activities of CHIS holding authorisations would be subject to an independent, judicial layer of oversight. The defence-based approach would arguably also be conducive upholding the public confidence in the state-sanctioned lawbreaking that underpins the criminal conduct authorisation model – as one commentator states there is no “better means of maintaining public trust and confidence in a system then allowing a robust and open challenge by those wrongly affected by such activity in court.”4

3. A JUDICIAL WARRANT REQUIREMENT TO ISSUE A CRIMINAL CONDUCT AUTHORISATION

To further improve the safeguards of the CHIS Act’s criminal conduct authorisation framework, the government should introduce a system of warrants or prior independent judicial approval for the authorisation of the commission of crimes.

At present, under section 32C of RIPA 2000, a person who issues (or cancels) the criminal conduct authorisation of a CHIS must give notice to a Judicial Commissioner. The notice must set out the grounds on which the person giving the notice believes that the requirements of the grant of an authorisation are satisfied and specify the conduct that is authorised (section 32C(4) RIPA 2000). More generally, the Investigatory Powers Commissioner must keep the exercise of of the power to grant or renew criminal conduct authorisations under review (section 229(4A) Investigatory Powers Act 2016). However, no further safeguards are envisaged – the main oversight is provided by a senior official from the organisation issuing the authorisation, who may not be legally trained. The Act includes no system of warrants or judicial approval for the authorisation of crimes – or any other system of independent oversight of the legality of the grant of an authorisation. 

This means that the commission of criminal acts by CHIS is subject to weaker oversight than phone tapping or searches by law enforcement: while an intelligence officer must obtain a judicially-approved warrant from the Secretary of State and follow a detailed legal framework in order to lawfully tap someone’s phone and listen to their conversations5, they are under no such requirement when authorising a person to commit serious criminal offences. Notably, the Canadian equivalent of the CHIS Act regime does require the person authorising the commission of an offence to obtain a judicial warrant6. The absence of a warrant requirement from the CHIS Act also runs counter to the June 2015 recommendation of the Independent Reviewer of Terrorism Legislation that all warrants related to interception should be judicially authorised7.

The oversight concern is aggravated by the number of public authorities empowered to issue criminal conduct authorisations: as defined in Part A1 of Schedule 1 to RIPA 2000, in addition to more “traditional” security agencies such the intelligence services, the National Crime Agency and the Serious Fraud Office, criminal conduct authorisations can be also issued by (amongst others) the Environmental Agency, Department of Health and Social Care, or the Food Standards Agency. 

Introducing a requirement for the person issuing a criminal conduct authorisation to a CHIS would thus serve to bring the CHIS Act regime in line with at least the safeguards available in respect of much lesser intrusions into potential victims’ lives. It would also complement the introduction of greater prosecutorial oversight proposed above and ensure that the criminal conduct authorisation regime is bookended with safeguards against abuse, with independent oversight present both when an authorisation is granted and when it is relied on. 

Raise it with your union branch using this model motion and use this template to write to your MP.

FURTHER INFORMATION

House of Commons Library Briefing Paper Number 8660, 13 September 2019 Undercover policing in England and Wales By Joanna Dawson, Jennifer Brown. Please note, this document was downloaded from https://researchbriefings.parliament.uk/ in September 2019 but has since become available. We are interested to know why it was removed.

[1] https://www.bbc.co.uk/news/uk-34875197

[2] https://publications.parliament.uk/pa/bills/cbill/58-01/0188/amend/covert_rm_cwh_1012.pdf p.5 [Cross-party amendment to put express limits in the Bill – Insertions to Clause 1, page 2, line 36] 

SEX BY DECEPTION

A new report advocating change to the laws on consent and deception is a welcome contribution to a debate that is more complicated than it might first seem.

On January 18th 2023, we attended the Criminal Legal Reform Now Network’s launch where Harriet Wistrich explained our cases, in particular that of ‘Monica’, that are referenced in the report.

In December 2022, we submitted our response to the Crown Prosecution’s consultation about sex by deception which seemed primarily concerned with deception by gender. We believe, however, that deception as to gender cannot be looked at in isolation from other forms of deception in sexual relationships.

For those who have followed our campaign for a while, you will know that we are clear on this: our relationships with undercover officers were not consensual. You will also know that the CPS told us we were wrong and the officers had no case to answer because ‘genuine feelings’ were involved. And then in December 2018 that the courts rejected Monica’s judicial review and upheld the CPS decision.

In a parallel universe, it seems, in May 2021 during his evidence to the Undercover Policing Inquiry, ex-undercover officer Vincent Harvey who had a deceitful relationship with ‘Madeleine’ admitted that he knew ‘Madeleine’ would not have consented to a sexual relationship with him had she known who he was:

Q: Would “Madeleine” have slept with someone she knew to be an undercover police officer? 

A: No.

[See: https://www.ucpi.org.uk/wp-content/uploads/2021/05/20210511-ucpi-t1_p2-evidence_hearings-transcript.pdf]

The deception perpetrated by undercover police violated our right to sexual autonomy and resulted in severe emotional and psychological harm to many of us. Our ‘consent’ to sexual activity with those men was fraudulently obtained.  They knew that we would never have consented to sex with them had we known who they really were. Their deception removed our ability to meaningfully consent – our freedom to make decisions based on our own priorities and values.

The application of the law relating to consent is confused and inconsistent and its implementation has failed to protect some types of victims and allowed many perpetrators to escape justice. For this reason, we are pleased to see lawyers engaging with this issue and proposing change. We have some concern, however, with a couple of details. In particular, clause 4A 1(d) and 4A (3), as follows:

4A. Inducing a person to engage in sexual activity by deception

  1. (1)  A person (A) commits an offence if—
    1. (a)  A deceives another person (B);
    2. (b)  A intends by his deception to induce B to engage in sexual activity;
    3. (c)  B engages in sexual activity;
    4. (d)  B’s decision to engage in sexual activity is induced by A’s deception; and
    5. (e)  A has no reasonable excuse for deceiving B.

And:
(3) Where evidence is provided of a reasonable excuse for A’s deception, it will be for the prosecution to prove that there was no reasonable excuse.

We worry this ‘reasonable excuse’ would be a get out of jail free card for undercover cops & other covert human intelligence sources (CHIS). ‘A’ may have a reasonable excuse for deceiving ‘B’, but that shouldn’t be relevant to having sex and it feels like 4A 1(d) & (3) are muddying the waters.

We understand the need to create space for a defence but we have bitter experience of the Met police’s misogyny, lies and self-preservation instinct. We think the officers could argue that infiltrating our groups was a reasonable excuse to deceive their ‘legitimate targets’; that the sex was an add-on extra and that their ‘reasonable excuse’ means they are not culpable of this offence.

We know the guidelines say no relationships these days and we know we’ve had an apology. But with the lack of limits in the CHIS act (which fails to specifically prohibit rape, murder or torture), we fear that state-perpetrators of sex by deception might use this clause to wriggle their way out of being found guilty of a crime. Again.

State involvement in the deception we were subjected to is what makes our cases unique. But that doesn’t mean there aren’t lots of them. We know of more than fifty women deceived into sex by policemen employed by Special Branch (SB). The SDS and NPOIU – the SB units who cultivated these spycop abusers – are approximately 5% of undercover policing in the UK. So how are the other 95% of undercover police behaving? What scrutiny is there of these deployments? How many more women have been deceived by on-duty police officers wearing their own clothes?

Like everyone else we’re shocked and horrified by recent stories of rape and murder by uniformed officers. The institutional misogyny in the so-called elite units and elsewhere is clear for all to see. If this is how the uniformed officers behave, what is going on undercover?

It’s time for the laws on consent to change but this law must apply to perpetrators including those employed by the state: undercover police, agents of the security services and their informers must be stopped from acting as a law unto themselves. Without this line in the sand, we have no faith that state-sponsored sexual abuse will stop.

POLICE, CRIME, SENTENCING & COURTS ACT

The Police, Crime, Sentencing and Courts Act is legislation with huge scope. Some of its most concerning proposals focus on protest, criminalisation of trespass and the strategy for tackling serious violence.

The Act extends the police’s already extensive powers, creates new offences, and targets demonstrations. It fundamentally restricts our freedom of assembly and expression, and undermines our ability to stand up to the State and make our voices heard.

From our experience as activists spied on by undercover police, and from the evidence in the first tranche of the public inquiry into undercover policing (UCPI), it is clear that state control of protest is nothing new. This legislation is its latest attack.

We are fiercely opposed to this Act.

For further information, read Liberty’s briefing document here.

FOOTNOTES re. REFORMING CHIS ACT above.
  1. FBI, ‘The Attorney General’s Guidelines Regarding the Use of FBI Confidential Human Resources’, p.30, ↩︎
  2. David Robert Barkshire and others v The Queen (Court of Appeal Criminal Division, unreported, 20 July 2011) ↩︎
  3. Ibid, para.18. ↩︎
  4. Jacob Bindman, ‘The Covert Human Intelligence Sources (Criminal Conduct) Bill 2020’ 6 October 2020, < https://gardencourtchambers.co.uk/the-covert-human-intelligence-sources-criminal-conduct-bill-2020/ > accessed 20 December 2024. ↩︎
  5. See Chapter 1 of the Investigatory Powers Act 2016. ↩︎
  6. Sections 20.1(21), 21 of the Canadian Security Intelligence Service Act 1985. ↩︎
  7. Independent Reviewer of Terrorism Legislation ‘A Question of Trust’, para 14.47. ↩︎
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