Child covert intelligence lawful, says the High Court
22 July 2019
In rejecting the claim of Just for Kids Law, Mr Justice Supperstone affirmed that the legal framework for deploying juvenile covert human intelligence sources (JCHIS) was lawful and adequately safeguarded the child’s welfare.
The use of CHIS was originally set out in part II of the Regulation of Investigatory Powers Act 2000 (RIPA). Section 29(5) sets out that there must be a “person holding an office, rank or position with the relevant investigating authority” who will: have day-to-day responsibility for dealing with the covert human intelligence source (CHIS); have general oversight of the source; and maintain a record of the use of the CHIS.
RIPA is silent as to the age of a CHIS but s.29(7) does allow the Secretary of State to prohibit the authorisation of a CHIS or to impose additional requirements which must be observed before a CHIS can be authorised.
More detailed guidance is provided in the Regulation of Investigatory Powers (Juveniles) Order 2000. This provides that where a JCHIS is under 16 years old they must be accompanied by an appropriate adult at the meetings with the investigating authority. Article 4(3) provides that an appropriate adult is either: (a) the parent or guardian; (b) any other person who has for the time being assumed responsibility for the welfare of the source; or (c) where (a) or (b) aren’t available, a responsible adult over the age of eighteen who is not employed by nor is a member of the investigating authority.
Article 5 of the 2000 Order sets out the risk assessment that must be undertaken before the investigating authority can deploy a JCHIS. It requires a risk assessment to be made in respect of both physical and psychological harm and requires the investigating authority officer to ensure that the risks are justified and adequately explained to the source. It further requires the officer to consider whether
the relationship to which the conduct or use would relate is between the source and a relative, guardian or person who has for the time being assumed responsibility for the source’s welfare, and, if it is, has given particular consideration to whether the authorisation is justified in the light of that fact.
An important distinction is that a CHIS can be authorised for twelve months whereas under the 2000 Order a JCHIS can only be authorised for one month at a time.
The change to the law
The Regulation of Investigatory Powers (Juveniles) (Amendment) Order 2018 made two changes to the 2000 Order. It increased the maximum authorisation time from one month to four months and it altered the definition of appropriate adult so that it was now either: (a) a parent or guardian; or (b) “any other person who has for the time being assumed responsibility for his welfare or is otherwise qualified to represent the interests of the source.”
The Code of Practice provides, inter alia,that vulnerable individuals should only be authorised as a CHIS (or JCHIS) in “exceptional circumstances.” Whilst this section does not state that a child is automatically vulnerable, it does provide that a person can be vulnerable because of their age.
There are additional sources of guidance in the National Policing Improvement Agency (NPIA) and territorial police units’ own specific guidance.
Section 11 of the Children Act 2004 requires public authorities to ensure that they discharge their duties in a way that promotes and safeguards the welfare of children. Section 1(8)(h) of the Police Reform and Social Responsibility Act 2018 requires police forces to ensure that they exercise their duties in relation to s.10 and s.11 of the Children Act 2004.
Finally, part 8 of the Investigatory Powers Act 2016 contains provisions that require the Investigatory Powers Commissioner (IPC) to review the use of investigatory powers and to provide the Prime Minister with a yearly report that covers, inter alia, the use of CHIS and JCHIS. The report presented to Parliament in January 2019 confirmed a few important factors: 1. during an inspection of an investigating authority every deployment of a JCHIS is reviewed; and 2. the risk assessment of each JCHIS is reviewed, including an assessment as to whether the JCHIS is being asked to involve themselves in criminality that they were not previously involved with.
Grounds of Challenge
The grounds of challenge approved by Lavender J were as follows:
Ground One: The scheme breaches Article 8 ECHR for the following reasons:
- The Code of Practice does not state that any child should be treated as vulnerable and there is no general requirement of exceptionality for child intelligence sources.
- Neither the 2000 Order nor the Code of Practice refers to or emphasises the importance of treating the best interests of the child as a primary consideration.
- In relation to those under 16, the 2000 Order (as amended) does not state that an appropriate adult must be someone independent of the investigating authority.
- In relation to 16 and 17-year-olds, there is no requirement at all for an appropriate adult.
- A renewal of an authorisation is not required at any greater frequency than every four months.
- There is no requirement when assessing risk or authorising the use of a child CHIS to draw on the expertise of those with training in child welfare.
- There is no limit on the number of times a four-month authorisation can be renewed.
- In relation to 16 and 17-year-olds there is no prohibition on giving of evidence against their own parents.
Ground Two: It is irrational for the scheme to draw a distinction between persons aged 15 or under, who must always have the safeguard of an appropriate adult at meetings with JCHIS, but not a person aged 16 or 17.
Supperstone J agreed that Article 8 ECHR was engaged because acting as a JCHIS could interfere with the child’s ‘private life’ in several ways, namely, (1) interfering with the moral or physical integrity of the individual; (2) such activity could damage the relationships between the child and his parents/guardians, particularly if the child was conducting covert surveillance of those individuals.
It was agreed between all the parties that this was a systemic challenge and that the correct test is whether there is an unacceptable risk of breach of the Article 8 rights of JCHIS inherent in the system (R (Detention Action) v First Tier Tribunal (Immigration and Asylum Chamber) and others  1 WLR 5341, per Lord Dyson MR at para 27).
As to each specific issue above:
- Supperstone J did not agree that the scheme should recognise all children as vulnerable, stating that as the 2000 Order and Code already identify that juveniles are more vulnerable than adults, the enhanced risk assessment recognises the inherent vulnerability of juveniles and the fact that they are deployed rarely (only 17 have been deployed since January 2015) demonstrates that investigating authorities were only deploying JCHIS in ‘exceptional circumstances’ already.
- It was considered that the scheme substantively complies with the need to safeguard the welfare of the children involved, as it requires a risk assessment which focuses on the physical and psychological wellbeing of the child.
- This allegation arose out of the amendment made to the appropriate adult definition by the 2018 Order. The claimant alleged that it weakened the protection offered to a JCHIS. However, Supperstone J agreed with the Secretary of State that this actually strengthened the protection offered to a JCHIS, as it would lead to the investigating authority making an assessment of whether an adult was suitable to act as the appropriate adult. The Judge added that he thought it was clear that the authority would be precluded from acting as an appropriate adult because of the obvious conflict of interest and that despite the amendments the starting point still remained that the parent or guardian of the JCHIS would be the appropriate adult unless there were cogent reasons as to why this was not appropriate.
- The Judge dismissed this challenge and agreed with the Secretary of State that it is a relevant consideration that children “demonstrate an increased maturity and independence as they grow older” and that the legal framework required the investigating authorities to assess whether a 16 or 17 year old required an appropriate adult on a case by case basis.
- The Judge held that whilst the maximum period of authorisation had been increased from one to four months, the appropriateness of the JCHIS still had to be reviewed by way of a monthly assessment of the health and safety of the source and therefore the scheme was still lawfully safeguarding the welfare of the child.
- The Judge was satisfied that the fact that the police officers were trained in child welfare and that the JCHIS’s mental state should be considered as part of the risk assessment was adequate.
- The Judge was satisfied that the safeguards in Article 5 of the 2000 Order were sufficient to ensure that JCHIS use is kept to a minimum and was not persuaded that a source would be exposed to a dangerous situation for a prolonged period of time without proper safeguarding.
- The Judge agreed with the Secretary of State that an absolute preclusion on 16 or 17 year olds giving evidence against their parents was unnecessary, as the risk assessment required would ensure that such an issue would be given adequate consideration.
The Judge rejected the reasoning on Ground Two for the same reasons as those at (4) above.
Overall, therefore, despite the obvious risks associated with the deployment of a JCHIS, Supperstone J was content throughout his judgment that the Secretary of State has taken adequate steps to ensure that their welfare is safeguarded.
Thomas Beasley is presently working as a paralegal and will commence the BPTC in September 2019.