Issue 39 October 2021 - Journal - Page 124
The Covert Human Intelligence Source
(Criminal Conduct) Act 2021:
Making Lawful Criminal Conduct
by Dr David Lowe, Leeds Law School
5. Any deprivation of liberty effected pursuant to a
purported authorisation given under the policy violates the procedural rights under Article 5 of the
6. Supervision of the operation of the policy by the
Intelligence Services Commissioner in the past, and
now the Investigatory Powers Commissioner, does not
satisfy the positive investigative duty imposed by Articles 2 (right to life), 3 (prohibition of torture and 5
(right to liberty of the person) of the ECHR.
In April 2021 the UK government passed the Covert
Human Intelligence Sources (Criminal Conduct) Act
2021, which came into force in July 2021. A covert
human intelligence source, commonly referred to as
a CHIS, is in police terms an informant or in the security service terms an agent. For this article they will
be referred to as informants. With the Act allowing in
specified conditions informants to participate in criminal conduct, the Government felt it had to legislate
on this issue following a majority decision of the Investigatory Powers Tribunal that held such action can
be lawful. In the case, Privacy International and others v
Secretary of State for Foreign and Commonwealth, and others  UKIPTrib IPT_17_186_CH the claimants
challenged a policy that the Prime Minister acknowledged existed in March 2018 that the Security Service
(MI5) authorise the commission of criminal offences
by its agents.
7. Conduct authorised under the policy in breach of
Articles 2, 3, 5 and 6 (right to fair trial) of the ECHR
is in breach of the negative and preventative obligations in the ECHR. It is submitted that the policy itself
is unlawful to the extent that it sanctions or acquiesces
in such conduct.
From its beginning both the police and the security
services have used informants. As in virtually all cases
informants operate within terrorist or criminal circles,
their information can be a valuable asset during
investigations. For many years the governance of
informants was through internal policy and guidelines
with no consistency in procedures and it was a practice that was open to challenge regarding the methods
as to how informants were recruited and handled.
Even though Home Office guidelines in handling of
informants was introduced in 1984 to guarantee a degree of uniformity as to how the police in England and
Wales handled informants. Following the House of
Lords decision in R v Khan (Sultan)  3 WLR
162 where the Court held the 1984 Home Office
guidelines were acceptable, Khan took his case to the
The challenge was based on seven grounds:
1. There is no lawful basis for the policy, either in
statute or at common law.
2. The policy amounts to an unlawful de facto power
to dispense with the criminal law.
3. The secret nature of the policy, both in the past and
now, means that it is unlawful under domestic principles of public law.
4. For the purposes of the European Convention on
Human Rights (ECHR), the policy was not and is not
“in accordance with law”.
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