The Legal and Human Rights Implications of State-Sanctioned Crime in the UK

The article considers the impact of, and opportunities posed for criminal defence and human rights lawyers by the passing of the UK's Covert Human Intelligence Sources (Criminal Conduct) Act 2021 ("CHISA") which authorises criminal activities by state bodies and their agents.

Impact of CHISA

CHISA is possibly the first Act of its kind in the UK's modern history which has put into law that criminal conduct by the Act's authorised bodies and their agents are potentially exempt from criminal liability for serious offences including extortion, blackmail, kidnapping, murder, rape, drug trafficking, and other serious crimes.

The Exempt Agencies

The Act amends the UK's Regulation of Investigatory Powers Act
2000 which by its Schedule 1, Section 30, gives authorisation with little oversight to certain state "exempt agencies" (for the purposes of ss. 28, 29 and 29b of the Act) to decide whether any criminal act is necessary to be performed by them.

What is particularly noteworthy is that CHISA’s Schedule 1 lists the UK's Ministry of Justice among the exempt agencies, despite its responsibility for the court system and judicial oversight.

This raises some important questions about potential conflicts of interest and the separation of powers particularly as the Ministry is generally responsible to the UK Parliament for the country's judicial administration and appointments, its court systems, prisons and probation services. It also supervises the administration of justice in the UK's Crown Dependencies such as Jersey, Guernsey and the Isle of Man as well and the other British Overseas Territories.

The other exempt agencies are: -

• Any police force
• The National Crime Agency
• The Serious Fraud Office
• The intelligence services
• Any of the intelligence services
• Any of Her Majesty’s forces
• Her Majesty’s Revenue and Customs
• Government departments
• The Department of Health and Social Care
• The Home Office
• The Competition and Markets Authority
• The Environment Agency
• The Financial Conduct Authority
• The Food Standards Agency
• The Gambling Commission.

How the crimes are authorised

The agencies' criminal activities liability exemptions are authorised by CHISA's amendments to the UK's Regulation of Investigatory Powers Act 2000 as follows: -

Section 29B (1): that the persons designated in the Act each have power to grant criminal conduct authorisations ("CCAs").

Section 29B (2): A “criminal conduct authorisation” /CCA is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.

Section 29B (3): A criminal conduct authorisation may only be granted in relation to a covert human intelligence source after, or at the same time as, an authorisation under
Section 29 which authorises the conduct or the use of the covert human intelligence source concerned.

Validation of the crimes

Section 29B (4): that the authorisation is valid where the person granting it believes that the authorisation is necessary for the following reasons (Section 29B Subsection (5)): -

• in the interests of national security
• for the purpose of preventing or detecting crime or of preventing disorder, or
• in the interests of the economic well-being of the United Kingdom.

Protections

The Act however provides some protection for those who are at the wrong end of its provisions. For example, by its 29B (4) A person may not grant a criminal conduct authorisation ("CCA") unless the person believes:

• that the authorisation is necessary on grounds falling within RIPA's 29b subsection (5);
• that the authorised conduct is proportionate to what is sought to be achieved by that conduct; and
• that arrangements exist that satisfy such requirements as may be imposed by orders made by the Secretary of State.

Defence against the Act's Powers

The provisions of the Act mean that any of the exempt agencies committing criminal acts may lawfully plead exemption from justice in any court of law of the UK for any crime carried out under it as the Act does not specify any limit to the scope of criminal activity of the exempt agencies.

Judicial Review

Whilst judicial review may be appropriate, it is difficult to appreciate a court granting leave for judicial review for the actions of a state body that has permission to commit criminal acts which by their nature are meant to be done in secret. The Act is young, so it will be interesting to see how this develops.

Authorisation Guidelines for Criminal Conduct under the Act - UK Home Office

The UK Home Office has published a guideline for CCAs (criminal conduct activity) by exempt bodies. It is specific that CCAs that offend against the European Convention on Human Rights' provisions should not be granted. However, where that guideline is breached, it provides only for disciplinary action against those responsible, but no criminal liability.

The guideline also provides for oversight of the Investigatory Powers Commissioner's Office (IPCO) whose commissioner is a person who has held high judicial office. The Commissioner is able to examine (at any time) any CCA and its associated information which are to be retained and can issue recommendations which CCA authorisers must act upon. It is not clear whether the Commissioner can stop the authorisation of a CCA though.

European Convention of Human Rights ("ECHR")

CHISA is potentially in conflict with a number of provisions of the European Convention on Human Rights ("ECHR") of which the UK is a signatory even though the ECHR provides that the signatory states may derogate from its provisions in certain circumstances.

Murder

In the case of authorised murder under CHISA, the 13th Protocol to the European Convention on Human Rights may be useful to criminal defence lawyers as the Protocol prohibits the restoration of the death penalty in all its forms whilst the UK is a party to the convention (which it still is).

The protection of this Protocol has not yet been tested in relevance to CHISA, but on its face may be provide a good source for redress for state-authorised lethal force /killings under CHISA.

The ECHR ruled on its Article 2 (right to life) in 1995, when in McCann and Others v United Kingdom (21 ECHR 97 GC) it held that the Article's second paragraph's exception (use of force causing death in defence of self, or others, arresting a suspect or fugitive, or suppressing riots or insurrections) did not meet the Article's requirements for the force used to be "no more than absolutely necessary".

In that case, when British intelligence agents shot and killed terror suspects in Gibraltar, the ECtHR found there had been a violation of Article 2 of the ECHR (right to life) as the killing of the terror suspects were not "absolutely necessary" as set forth in the Article 2-2.

Essentially, signatory states to the ECHR can only derogate from the rights contained in Article 2 for deaths which result from lawful acts of war.

Torture

Article 3 of the ECHR prohibit torture and "inhuman or degrading treatment or punishment". As there appear to be no ECHR derogations, exceptions or limitations on this right, CHISA is potentially in conflict with this Article.

Furthermore, the Article applies also to serious, or severe violence by law enforcement agents and bad conditions for those in detention. In addition, the ECtHR has prescribed that states may not deport or extradite individuals to other states where they may be subjected to torture, inhuman or degrading treatment or punishment.

Other Crimes

By Art. 15 of the ECHR, state parties may derogate from some of its provisions in time of emergency.

Art. 15 prescribes that the derogations may be only invoked in time of war or other public emergency threatening the life of the nation and the measures may be applied only to the extent strictly required by the situation and that any derogations may not be inconsistent with the State’s other obligations under international law.

However, Article 15 does provide that certain ECHR rights are non-derogable. In this context, as CHISA grants wide-ranging authority to designated agencies to authorise criminal conduct by covert human intelligence sources, with no explicit statutory limitation on the categories of offences that may be authorised, this appears to be in clear conflict with the ECHR’s protections for non-derogable rights.

Non-derogable rights under the ECHR

• Right to life except in the context of lawful acts of war
• Torture and inhuman or degrading treatment or punishment
• Slavery and servitude
• No punishment without law
• In addition, Article 1's Protocol 6 and 13) (abolishment of the death penalty) are not derogable (as mentioned previously)
• Article 4, Protocol 7 (the right not to be tried or punished twice).

It is important to note that where derogation is sought, the state seeking this right is required to keep the Secretary General of the Council of Europe fully informed. Failure to do so by a state could be a ground for having the applied measure declared improperly exercised.

DISCLAIMER

This article is not legal advice. It is meant to be the author's personal and summary review of the impact of CHISA and the opportunities therein for criminal defence and human rights lawyers. Should you wish to rely on anything said in it, you should take due advice from a suitably qualified professional familiar with the law concerning your particular matter.

ABOUT THE AUTHOR: Dr Andre Alexander, Barrister, Solicitor
Dr Andre Alexander is a common law barrister & solicitor and a former member of the bars of Germany and Belgium. He currently practices as an international lawyer via ABS&P International Law Firm in Costa Rica where he is a Partner. His practice includes the fields of venture capital, human rights, criminal and compliance defence, commercial litigation, medical malpractice and financial services.

Copyright ABS&P International Law Firm

Disclaimer: Every effort has been made to ensure the accuracy of this publication at the time it was written. It is not intended to provide legal advice or suggest a guaranteed outcome as individual situations will differ and the law may have changed since publication. Readers considering legal action should consult with an experienced lawyer to understand current laws and.how they may affect a case. For specific technical or legal advice on the information provided and related topics, please contact the author.