12th March 2021
A recent court of appeal case has provided an insight into how the United Kingdom state both authorises people to commit criminal offences and then protects them from prosecution.
To show how this is done is not necessarily to condemn – or endorse – such governmental practices.
You may well believe that it is right that in certain covert operations those acting on behalf of the state should be able – as part of their cover – be able to break both the criminal and civil law for the greater good.
Or you may believe it should not be legally possible and that such things have the effect of placing state agents above the law.
In either case there is value in understanding just how it is done.
The starting point is to know – in general terms – about the two-stage ‘code’ test for bringing criminal prosecutions.
The first stage is to determine whether there is sufficient evidence against a defendant – this is called the evidential test.
The second test – treated as a routine formality in most every-day cases – is whether, distinct from the evidential test, there is a public interest in a prosecution – this is called the public interest test.
The notion is that there is a presumption that a prosecution is in the public interest unless there is a reason why such a prosecution was not in the public interest.
And it is at this second stage that state-authorised criminals are protected from prosecution.
But it is important to note that this protection is not a legal immunity.
Oh no, not at all, definitely not, how could you think such a thing?
The contention is that because in theory a prosecution can still occur then state agents are not technically above the law.
And placing state agents above the law would be a bad thing, and such a bad thing would never happen.
An authorisation for a state agent to break the law does not confer immunity from prosecution – it instead provides a factor which a prosecutor takes into account when making the decision whether a prosecution is in the public interest or not.
In this elaborate – and for some, artificial – form the state has both its cake and a file inside it.
State agents are protected from prosecutions for their criminal acts – but are not given immunity.
It is just that the prosecutions will not happen.
The court of appeal case is the latest (and perhaps last) stage in an important public interest case which, among other public benefits, has led to the disclosure of hitherto secret guidance on authorising state agents to commit criminal effects.
The judgment at paragraph 14 even published a redacted version of the guidance.
One paragraph of that guidance describes the legal effect and consequences of an authorisation (which I break up into smaller paragraphs for flow):
‘9. An authorisation of the use of a participating agent has no legal effect and does not confer on either the agent or those involved in the authorisation process any immunity from prosecution.
‘Rather, the authorisation will be the Service’s explanation and justification of its decisions should the criminal activity of the agent come under scrutiny by an external body, e.g. the police or prosecuting authorities.
‘In particular, the authorisation process and associated records may form the basis of representations by the Service to the prosecuting authorities that prosecution is not in the public interest.
‘Accordingly, any such authorisation should, on its face, clearly establish that the criteria for authorisation are met, in terms which will be readily understood by a prosecutor.
To a certain extent the court of appeal case is of historic interest, because the government has now legislated to place part of this system on a statutory basis.
In the grand tradition of giving important legislation complicated and forgettable names, this is the Covert Human Intelligence Sources (Criminal Conduct) Act 2021.
This inserts the glamorous-sounding ‘section 29B – Covert human intelligence sources – criminal conduct authorisations’ into the Regulation of Investigatory Powers Act 2000, including this definition:
‘A “criminal conduct authorisation” is an authorisation for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source.’
You will note – perhaps worryingly – that there is no limit on what criminal actions may be authorised.
And here on should bear in mind the circumstances of the murder of Pat Finucane.
(And those circumstances explain why the Pat Finucane Centre were one of the groups bringing the legal challenge.)
On the face of it: murder and other serious criminal offences can be authorised by the state: there is no express limit.
But, of course, such things would never happen.
Paragraph 113 of the judgment also reveals something interesting:
‘The undisputed evidence generally was that the Security Service works closely with the police in counter-terrorism operations. The evidence also reveals that there is, for example, a Memorandum of Understanding between the Security Service, the police and the Counter Terrorism Division of the Crown Prosecution Service.’
This memorandum of understanding, of course, does not seem to be in the public domain.
As a ‘memorandum of understanding’ this would be a formal, legal-looking document – complete with pompous earnest language and paragraph numbers – but it is as much an imposter as any covert agent.
The purpose of a memorandum of understanding between government entities is to have the effect of a binding agreement – but without any of the inconveniences of it actually being a legal instrument, such as transparency.
There are memorandums of understanding all over the state (and between the United Kingdom and other states) – many of which are secret – but all of which are crucial in the conduct of government and public affairs.
The court of appeal’s helpful mention of the existence of this memorandum of understanding tells us how – as a matter of process – the authorisations are in practice converted into decisions not to prosecute.
Again: you may take the view that all this is not something to worry about and that government is doing what it has to do so as to keep us all safe.
Nothing in this post should be taken to gainsay such an entirely valid view.
The purpose of this post is to use information in the public domain so as to show how the state goes about doing what it does.
And there is even a reason to welcome the 2021 act even if one is a liberal or progressive.
The more of what the state does that is placed on a public statutory basis the better in any democratic society that values the rule of law.
So although the various public interest groups failed in their appeal, their dogged-determined litigation has led to certain things becoming public knowledge and perhaps being placed on a statutory footing that were not public knowledge before.
Just because some things should be covert it does not mean all things have to be covert.
And there is not a good reason why the ways and means by which the state authorises criminal conduct and then protects its agents from prosecution should not be in public domain – and in a democratic society that values the rule of law there is a good reason why it should be.
The first version of this post had a mention of the Criminal Injuries Compensation Scheme – but the point I made now appears to be incorrect – so I have deleted that section so I can consider it again.
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