Children as Covert Human Intelligence Sources: Spies First, Children Second
| Published date | 01 December 2023 |
| DOI | http://doi.org/10.1177/14732254231154160 |
| Author | Raymond Arthur,Tracy Kirk |
| Date | 01 December 2023 |
| Subject Matter | Original Articles |
https://doi.org/10.1177/14732254231154160
Youth Justice
2023, Vol. 23(3) 372 –387
© The Author(s) 2023
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DOI: 10.1177/14732254231154160
journals.sagepub.com/home/yjj
Children as Covert Human
Intelligence Sources: Spies
First, Children Second
Raymond Arthur and Tracy Kirk
Abstract
The Covert Human Intelligence Sources (Criminal Conduct) Act 2021 empowers the police, and other
authorities, throughout the United Kingdom to use children as Covert Human Intelligence Sources (CHIS)
and to authorise these children to engage in criminality, with no criminal liability, in return for information.
In this article, we analyse the risk of severe physical and emotional harm that children face when acting as
a CHIS and engaging in criminal behaviour to preserve their cover. This practice of using a child as a CHIS
and encouraging children to engage in criminal conduct also runs counter to the Youth Justice Board for
England and Wales’ ‘Child First’ vision of a youth justice system that respects children rights and operates in
children’s best interests. Throughout the article we argue that, despite the existing safeguards, the emphasis
should be on helping children to escape a criminal lifestyle, rather than entrenching them further in a life of
criminality by encouraging them to act as a CHIS.
Keywords
autonomy, Child First, covert human intelligence sources, right to an open future, United Nations
Convention on the Rights of the Child
Introduction
The Covert Human Intelligence Sources (Criminal Conduct) Act 2021 empowers the
police, and other authorities, throughout the United Kingdom to use children as Covert
Human Intelligence Sources (CHIS) and to authorise these children to engage in criminal-
ity, with no criminal liability, in return for information. Employing a child as a CHIS
essentially involves requiring the child to remain in a situation where they are being
abused, or at risk of harm, to help fight criminality. In The Queen on the application of
Just for Kids Law v Secretary of State for Home Department (2019) the charity Just for
Kids Law (JFKL) challenged this practice of using children as CHIS in the criminal jus-
tice system of England and Wales. JFKL argued that this practice puts children at risk of
Corresponding author:
Raymond Arthur, Northumbria University, Newcastle upon Tyne NE1 8ST, UK.
Email: raymond.arthur@northumbria.ac.uk
1154160YJJ0010.1177/14732254231154160Youth JusticeArthur and Kirk
research-article2023
Original Article
Arthur and Kirk 373
severe physical and emotional harm and that the safeguards for children used in this way
were so inadequate as to contravene domestic and international human rights laws.
However, the court rejected these arguments and found in favour of continuing the current
practices. Since this judgement the Covert Human Intelligence Sources (Criminal
Conduct) Act 2021 has expanded the remit of the CHIS scheme by allowing the police,
and other authorities, to authorise children to engage in criminality, with impunity, in
return for information. Children used in this way by the police have no right to independ-
ent legal advice and only some of these children, those aged 15 years and under, have the
right to an appropriate adult to support, advise and assist the child while being interviewed
by police (Home Office, 2018). The 2021 Act also permits children aged 16 or 17 years to
gather, and report, information about their parents or guardians.
In this article we argue that the emphasis should always be on helping children to
escape a criminal lifestyle, rather than entrenching them further in a life of criminality by
encouraging them to act as a CHIS. We particularly focus upon section 2 of the 2021 Act
which regulates the granting of a ‘juvenile criminal conduct authorisation’. This article
examines the JFKL case to highlight the issues it raised, particularly in relation to the
contrived distinctions in protection provided to those aged 15 years and under and chil-
dren aged 16–17 years. Analysis of this case is particularly timely and pertinent as the
issues regarding inadequate safeguards still exist after the passing of the 2021 Act. We
argue that using a child as a CHIS will always run counter to the child’s best interests as
it increases the likelihood of being involved in crime – as both perpetrator and victim. The
current practices of using a child as a CHIS also runs counter to the Youth Justice Board
(YJB, 2020) for England and Wales’ ‘Child First’ vision for the English and Welsh youth
justice system to be based on respecting children rights and children’s best interests. We
engage with Joel Feinberg’s (2015) theory that children have a right to an ‘open future’ as
a critical tool to explore the links between the child acting as a CHIS and the degradations
of the child’s rights and welfare. Feinberg’s theory proposes that the child has an individu-
alised right to an equal chance in life, including the provision of support during childhood,
to maximise their developmental capacity to the threshold of adulthood. The United
and the United Nations Economic and Social Council Guidelines on Justice in Matters
involving Child Victims and Witnesses of Crime provide the children’s rights frameworks
that we draw on. While the focus of our article is on the law and practice in England and
Wales, Californian law is also examined as it provides strict limitations on the use of chil-
dren as informants requiring a court order to authorise the use of a child as a CHIS. The
Californian safeguards provide an example of an enhancement which could be made to
the current inadequate practices in England and Wales.
The Covert Human Intelligence Sources (Criminal Conduct)
Act 2021
The Regulation of Investigatory Powers Act (RIPA) 2000 (section 26(8)) defines a CHIS
as someone who covertly establishes or uses an existing personal relationship to obtain
information. The National Criminal Intelligence Service (1995: 15) had previously
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