Undercover Policing and Underwhelming Laws
Posted: 23 Jul 2014
Date Written: March 21, 2014
Intelligence-led policing strategies, such as undercover policing, are becoming more prevalent, driven perhaps because of the allure of intelligence-led policing or the disincentive of highly regimented interview rooms. This use of undercover police officers to infiltrate criminal activity has experienced a chequered history in recent years, On the one hand, there have been instances of bravery and achievement, ranging from the fight against serious and organised crime, including drugs and child abuse cases, through to more mundane ‘test purchases’ relating to alcohol and other commodities. On the other hand, all such cases entail police officers engaging in deceit, such as a false persona, to mislead their target. The worry is that officers sometimes overstep the boundaries of professionalism and fairness. This allegation has above all surfaced regarding the infiltration of groups of activists engaged in ‘domestic extremism’. These operations have often been long term and in some instances have involved undercover officers (the most famous of whom is Mark Kennedy) engaging in intimate relationships with the subjects of the investigation or their associates. In this way, ‘The activities of undercover units are part of a toxic combination of controversies, from the Hillsborough scandal to the Plebgate affair, which has damaged trust in the police.’ In order to analyse the effectiveness and fairness of undercover policing, this article will review developments in the law relating to undercover policing in the light of the Human Rights Act 1998 (‘HRA’) and the Regulation of Investigatory Powers Act 2000 (‘RIPA’). This analysis will require brief attention to the pre-RIPA case-law up to the definitive statement of law by the House of Lords in Loosely , a judgment which post-dated RIPA but which was concerned with undercover activity authorised pursuant to a ‘voluntary’ regime which pre-dated the HRA. Then, it is necessary to review the post-Loosely case law and to highlight any shifts in the dividing line between acceptable and unacceptable conduct on the part of officers deployed undercover. The survey will mainly demonstrate that the judges have tended to concentrate on compliance with the provisions of Article 6 of the European Convention in so far as they affect fair trials in court whilst paying scant regard to the privacy rights guaranteed by Article 8. Yet, the public furore surrounding the use of these tactics to infiltrate activists has mostly highlighted broader privacy infringements, though the insufficiency of compliance procedures are common concerns of lawyers and non-lawyers alike. Therefore, it is necessary to consider whether the legal regimen in RIPA provides an adequate basis in law for ensuring both effectiveness and fairness and whether the current proposals to address the issues raised by these recently controversies are sufficient.
Keywords: covert surveillance, entrapment, agents provocateurs, police powers
JEL Classification: K10, K14, K33, K19, K30, K33, K42, N40
Suggested Citation: Suggested Citation