Authorising Crime: The Covert Human Intelligence Sources (Criminal Conduct) Act 2021
| Published date | 01 September 2022 |
| Author | Paul F. Scott |
| Date | 01 September 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12751 |
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Modern Law Review
DOI:10.1111/1468-2230.12751
LEGISLATION
Authorising Crime: The Covert Human Intelligence
Sources (Criminal Conduct) Act 2021
Paul F. Scott∗
The enactment of the Covert Human Intelligence Sources (Criminal Conduct) Act 2021
pre-empted the outcome of the appeal against the decision of the Investigatory Powers Tri-
bunal in the so-called ‘third direction’case. This legislation article considers the background to
the statute in the form both of the (absence of a) legal regime governing informant participation
in criminality as revealed by reviews of events within the Northern Irish Troubles and the re-
cent litigation. It analyses the key legal issues raised by the Act and locates it within the modern
project of rationalising the law related to national security.
INTRODUCTION
With little warning, the Covert Human Intelligence Sources (Criminal Con-
duct) Bill was introduced into parliament in September 2020, becoming law in
early 2021 and pre-empting in part the outcome of the appeal against the deci-
sion of the Investigatory Powers Tribunal (IPT) in the so-called ‘third direction’
case.1The Act provides MI5 in explicit terms with a stronger form of what the
IPT had held that it already possessed – the power, through its ocers (those
in MI5’s employ), to authorise its ‘agents’ (informants and the like) to engage
in conduct that would normally constitute one criminal oence or another.
But it is not just MI5 who can now authorise criminal conduct in this way:
the relevant powers are also provided to a range of other public bodies,several
of which did not (obviously) possess them previously.This ar ticle addresses the
background to both the litigation and the legislation, analysing the latter in re-
lation to the judgments of the IPT and the Court of Appeal and their various
weaknesses.
The episode ts a familiar pattern whereby national security processes are
carried out on a contestable legal basis, protected against challenge in the rst
place by the secrecy which surrounds them. When that secrecy breaks down
∗Senior Lecturer in Law, University of Glasgow.Thank you to the MLR’sreviewers for helpful com-
ments.
1Privacy International vSecretary of State for Foreign and Commonwealth Aairs [2019] UKIPTrib
IPT/17/186/CH (Privacy International (IPT)) and, on appeal, [2021] EWCACiv 330 (Privacy
International (CA)).
© 2021 The Authors.The Moder n Law Review published byJohn Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022)85(5) MLR 1218–1244
This is an open access article under the terms of the Creative Commons Attribution-NonCommercial License,which per mits use,distri-
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Paul F.Scott
and litigation ensues, they are replaced with powers which though formally
superior are inevitably stronger and expanded in scope.More so than has been
the case in the many reforms of recent years,however,the Act reects a belated
attempt by the British state to tidy up some of the many loose ends left over
by its response to the Norther n Irish ‘Troubles’. Given, however, that it is a
purely forward-looking enactment, without retrospective eect,2it will not by
itself bring to an end attempts to secure accountability for what was done in
Northern Ireland during that per iod.It must therefore be understood alongside
the proposal for the introduction of a statute of limitations for the investigation
of ‘Troubles-related oences’,3which will – if implemented – have much the
same practical eect on such oences as would their retrospective authorisation.
BACKGROUND
Informants – under one of a number of names, and in one of a number of
guises – are, as we are frequently reminded,an invaluable element of the state’s
security apparatus: both in terms of how it deals with ‘ordinary’ cr ime and how
it responds to more severe or more far-reaching threats to its security. They
are used, therefore,not only by law enforcement bodies but also by the various
security and intelligence agencies (the SIAs: MI5, MI6 and GCHQ) and the
army.The need to protect the identity of such informants within the cr iminal
trial is recognised by case law going back hundreds of years on what is now
known as public interest immunity.4But much of the discussion about these
informants takes place against an uncertain criminal law backg round. In Rv
Birtles,5the Lord Chief Justice, Lord Parker,suggested the outer limits of what
might be done within what is recognised as a tripartite relationship,6between
the state actor,the infor mant and third parties, some of whom will be the target
of whatever action is agreed between state and informer. ‘It is one thing’, he
said, ‘for the police to make use of information concerning an oence that is
already laid on’. The police are entitled and indeed obliged ‘to mitigate the
consequences of the proposed oence, for example, to protect the proposed
victim, and to that end it may be perfectly proper for them to encourage the
informer to take part in the oence or indeed for a police ocer himself to do
so’:‘But it is quite another thing, and something of which this Court thoroughly
disapproves, to use an informer to encourage another to commit an oence or
2 A point which was stressed by the government. See for example the Minister for Security (James
Brokenshire),HC Deb vol 681 col 657 5 October 2020:‘Fir st,there is no retrospectiveeect – it
is quite important for me to state that explicitly.Therefore,actions that have occurred in the past
and are subject to fur ther inquiry, and potentially further criminal investigation, are untouched
by the Bill’. Though the absence of retrospective eect is not expressed on the face of the Bill,
the courts would no doubt require its presence to be signalled by express language if it was to
be used to authorise criminal conduct which had already taken place.
3 Secretary of State for Northern Ireland, Addressing the Legacy of Northern Ireland’s Past CP 498
(July 2021).
4SeeRvHardy (1794) 24 St Tr 199.
5RvBirtles [1969] 1 WLR 1047.
6 S.McKay, Covert Policing (Oxford: OUP,2nd ed, 2015) [7.11]-[7.13].
© 2021 The Authors.The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(5) MLR 1218–1244 1219
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