Any opinions, findings, conclusions or recommendations expressed in this material are those of the authors and do not necessarily reflect the views of Parallelewelten.
The use of covert human intelligence sources(CHIS’s), has been regulated by the Regulation of Investigatory Powers Act 2000 (RIPA), specifically Part II, since its inception into United Kingdom law on the 2nd October 2000. The legal definition of a CHIS is taken from s.28(8) RIPA as:
‘A person who establishes or maintains a relationship with another person for the covert purpose of obtaining information or providing access to information to another person, or covertly disclosing information obtained by the use of such a relationship, or as a consequence of the existence of such a relationship.’
The act came into being on the same day on which the Human Rights Act 1998(HRA), was finally passed, despite the HRA having received royal ascent 2 years prior to the passing. The RIPA’s realisation coincided with the HRA, due to its nature as an enabling piece of legislation. Its purpose is not an obligation to carry out the operations detailed; It merely provides a framework with which public authorities may carry out such operations in a way which does not intrude on human rights issues, namely Article 6 (A right to a fair trial), and Article 8(A right to privacy). Article 6(1), a right to a fair trial reads;
In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
The relevance of both this article, and article 8(2), will become apparent in the analysis of the officer’s conduct. Article 8(2), the right to privacy reads;
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
Whether evidence may be excluded in court with regards to s.78 of the Police and Criminal Evidence Act 1984(PACE), may come down to the severity of a breach of Article 8 and/or Article 6; not all breaches may infer exclusion.
S.78 PACE And Human Rights Issues
At the crux of the issue with regards to admissibility or exclusion of evidence, is s.78 of PACE. First and foremost, it was an original belief that it was at the trial judge’s discretion as to whether evidence shall be excluded; However, if the relevant evidence was not obtained following the committing of the offence in question, then there are no grounds for discretion with regards to excluding evidence based on it being acquired unfairly or improperly, as held in R v Sang. As a result, entrapment could no longer be used as a defence in court. This is the criminal law standpoint to this day.
It is a now a well established cornerstone of criminal law however, that it is always at the discretion of the court as to whether evidence which, although appearing to have good reliability, was obtained unfairly.
A general rule of evidence exclusion is provided under s.78(1) of PACE;
‘ In any proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.’
In R v Christou, Two undercover police officers posed as jewellery shop owners, with the intent to lure criminals into selling them stolen goods. They acted as one would expect jewellers to act. In a voire dire, the evidence gathered from the undercover operation was challenged by the defence. Basing their challenge on the principle laid down in Sang, and that the evidence was obtained through trickery, the submissions were rejected by the trial judge. Although the evidence was deceitfully gathered, the defendants volunteered to sell the stolen goods, they were not coerced into doing so. Therefore, the fairness of the trial was not under threat.
Another issue to arise from this case is the use of the caution when using evidence in court. It was found in Christou, that it would be wrong to allow evidence taken from a conversation when undercover, whilst neglecting to use the caution, under Code C 10.1 of PACE. The caution must be given to the suspect, when any factors of the offence will be questioned. Therefore, if the offence has been questioned, whilst not under caution, between our suspect and the undercover police officers, then any evidence (including confessions) may be liable to inadmissibility.
At this point, where fairness is in question, the right to a fair trial becomes a key issue. Common law precedent attempts to keep a trial fair, and is a strong weapon for the defence to use. By giving the presiding judge the authorisation ‘to exclude evidence if it is necessary in order to secure a fair trial for the accused’; Even without a breach of the legislation, evidence can be deemed as inadmissible when its relevance is in question. In our scenario, the use of previous convictions as a means of securing a prosecution in court must be debated. The evidence of bad character in this case, would provide a greater prejudice in the court and the jury, than providing any grounds for prosecution, and so it may not be allowed to stand in court, based on common law precedents. However, criminal law has prevailed in such situations. In R v Edwards, discretion under s.78 of PACE was applied. Two police officers approached a known drug dealer, asking to buy drugs, and looking to buy drugs again at a future date, for a discount. The defendant claimed the police officers had incited the offence, as agent provocateurs(See Below). However, the judge rejected this claim of exclusion, due to the defendant’s character. Because he understood the terms in which the police officers were discussing the deal, aswell as agreeing to future deals, the court found him to be an established drug dealer, and so the evidence could not be excluded. In our scenario, the dealer has agreed to sell drugs on a further 4 occasions, and so this potential route for exclusion may be closed off.
What is the acceptable participation which a police officer may take, in order to gather enough evidence for an arrest and prosecution? In R v Loosely, it was the judge’s ruling that if the undercover police officers did nothing more than what would be normally expected in order to obtain the goods (in this scenario’s case, the cannabis resin), then this would not involve any wrong-doing. An example of excessive effort or behaviour would be, following a refusal to sell the drugs; persistent requests or questioning with regards to committing the offence. It would appear therefore, that in our scenario, the undercover police officers have done nothing out of the ordinary in order to obtain these goods.
Another point is whether or not it is permissible for undercover officers to commit acts which would fall under offences governed in criminal law. In this case, on five seperate occasions, the undercover officers have committed the offence of possessing a controlled drug, an offence under s.5 of the Misuse of Drugs Act 1971:
‘Subject to any regulations under section 7 of this Act for the time being in force, it shall not be lawful for a person to have a controlled drug in his possession.’
In R v Khan, surveillance listening devices had been placed on the property of a suspected heroin dealer. In order for these devices to be planted on the premises, there had to be an civil tort of trespass committed, aswell as the criminal offence of criminal damage. There was a call for the evidence gained from this listening device to be deemed inadmissible; However, the judge discounted this appeal, accepting a lack of statutory guidance for police officers committing such offences. Because of this lack of statutory guidance, by the time the case reached the European Court of Human Rights, the conviction was overruled. The lack of lawfulness for the police to commit such acts in order to place bugging devices, resulted in a breach of Article 8 of the Human Rights Act 1998.
However, it is true to say that the police officers will lack the relevant mens rea to commit the ‘crime’, as in the eyes of the law, the actions are sanctioned. Therefore, the severity of any otherwise-criminal conduct, will have no effect on proceedings in the court.
An argument could be put forward that the undercover officers acted as Agent provocateurs; That is, to incite an act which would not have been committed otherwise. This argument, if relevant could be in breach of Article 6 of the HRA. Instead, reference must be made to the previous character of the offenders in question. With 5 previous offences of supplying cannabis resin, it is clear that these men have a history of returning to commit similar offences on a number of occasions, and so it may well be the judge’s decision that it is the nature of these defendants, to reoffend, regardless to whether any undercover sources are used. In similar circumstances; R v Smurthwaite; R v Gill, it was put to the court that police officers incited the accused to organise the murder of his wife, and that they had acted as Agent provocateurs. However, recordings of the conversations were allowed as admissible in court, and the police were cleared of entrapment with regards to the defendant. These conversations gave an indication that the defendant was inclined to carry out the enlisting of a hitman, regardless of whether the CHIS’s subsequently coerced him into doing so.
The fact of the matter is, it is not certain that these offenders would have sold the cannabis resin, had the undercover officers not instigated it. It is essentially the duty of an undercover officer to passively investigate criminal activity, and yet in Teixeira de Castro v. Portugal, it was deemed that instigation of the offence was too far for the undercover police officers to go, and in turn it could not be concluded that if they had not been present, an offence would have been committed. The basics of this case again revolved around the supply of a controlled drug, hashish. Two officers instigated a connection with a fixer, in order to reach a supplier, from which it was their intention to purchase 4kg of the drug. As the deal was concluded, Teixeira de Castro was arrested. However, the conviction failed, as the instigation was judged to have prevented a fair trial from the outset, as the offence was deemed to have been staged by the officers.
A consideration if a defendant’s claim is that he has fallen victim to an agent provocateur, is for discretion with regards to a stay in proceedings of the trial. In R v Shannon, Potter LJ stated:
‘So, for instance, if there is good reason to question the credibility of evidence given by an agent provocateur, or which casts doubt on the reliability of other evidence procured by or resulting from his actions, and that question is not susceptible of being properly or fairly resolved in the course of the proceedings from available, admissible and ‘untainted’ evidence, then the judge may readily conclude that such evidence should be excluded’
The discretion comes when evidence is available as a result of actions from agent provocateurs, and the following entrapment. However, in our case, based on the ruling in Smurthwaite, there has been no entrapment, and so there could be no stay of proceedings.
By having on his person 5 kg of cannabis resin, over the course of 5 weeks, the defendant restricts his right to privacy, as in Ludi v Switzerland. The defendant in this case claimed that his right to privacy had been infringed. However, the presiding judge ruled that by being part of a group of criminals who possessed many kilograms of cocaine, then any reasonable person would be aware of the fact that undercover operations may be enforced on their premises. The defendant in our case, therefore, could not use his right to privacy as a defence based on the precedent in this human rights case.
S.76 of PACE deals with the use of confessions in a court hearing. S.82 of PACE provides the following definition of a confession:
“any statement wholly or partly adverse to the person who made it, whether made to a person in authority or not, and whether made in words or otherwise”
In our scenario, by supplying a controlled drug, the suspect has inadvertently confessed his guilt. A statement of will to supply, is an adverse statement to his person, and was done under of his own accord. However, as the act states, the use of words is not necessary in order to give a confession. There is no evidence of any oppressive behaviour from either of the undercover police officers; a fact which may have rendered the use of this confession unreliable. In R v Fulling, the term ‘oppression’ was widened to include ‘burdensome or harsh exercise of authority’. The undercover police officers have not used their authority in an obvious sense, as at the time they were not seen in the public eye as authoritative figures.
However, as said before, if the caution was not issued to the suspect, which it wasn’t, then as in Christou, the confession becomes liable to not be used as evidence, as a breach of the PACE codes of Practise. The test for a judge’s discretion in this regard came in R v Keenan, where the effects of a breach of the codes needed to be ‘significant and substantial’. The issue here is whether the undercover officers in fact conducted an interview; That is, a conversation which includes questioning regarding an offence. Any answers they received having not cautioned the suspect may, depending on the judge, not be used in court as evidence, under s.78(2) of PACE.
Within the Smurthwaite case, the judge delivered 6 points on which discretion with regards to entrapment, and a conclusion on admissability should be based upon:
a. whether the undercover officer was acting as an agent provocateur in the sense that he was enticing the accused to commit an offence he would not otherwise have committed;
b. the nature of any entrapment;
c. whether the evidence consists of admissions to a completed offence or relates to the actual commission of an offence;
d. How active or passive the officers role was in obtaining the evidence;
e. Whether there is an unassailable record of what occurred or whether it is strongly corroborated;
f. Whether the officer abused his (undercover) role to ask questions which ought properly to have been asked as a police officer in accordance with the PACE Codes.
Based on the case law precedants used in my work, the following analysis of these points can be made;
a)The officers did not act as agent provocateurs, as previous evidence suggests a history of drug dealing, and so it could not be proved that the dealer would not have otherwise committed it.
b) The entrapment, although present, was not in bad faith, as the officers did nothing which would constitute excessive behaviour in enticing the offence.
c) Based on analysis of confession evidence under s.76 of PACE, there has been an admission to the offence, simply by being observed in committing the offence.
d) The officers were active in obtaining the evidence, and this could be a case for exclusion of evidence, based on the Teixeira de Castro ruling.
e) The record is made by serving police officers, and so their testimony is strong in nature. This evidence coincides strongly with other similar offences committed in the past by the defendant.
f) If there has been no questioning with regards to the offence, then there is no breach of the PACE codes of conduct. Any evidence gained whilst under questioning whilst not having received the caution may result in exclusion of evidence.
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