Covert Human Intelligence Sources (Criminal Conduct) Act 2021

2021 CHAPTER 4

An Act to make provision for, and in connection with, the authorisation of criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.

[1st March 2021]

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:—

Criminal conduct authorisations

1 Authorisation of criminal conduct

(1) Section 26 of the Regulation of Investigatory Powers Act 2000 (conduct to which Part 2 of that Act applies) is amended in accordance with subsections (2) and (3).

(2) In subsection (1)—

(a) omit the “and” at the end of paragraph (b);

(b) at the end of paragraph (c) insert “; and

(d) criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources”.

(3) After subsection (8) insert—

“(8A) In this Part references to criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source are references to any conduct that—

(a) disregarding this Part, would constitute crime, and

(b) consists of, is in the course of, or is otherwise in connection with, the conduct of a covert human intelligence source.”

(4) In section 29 of that Act (authorisation of covert human intelligence sources), after subsection (6) insert—

“(6ZA) An authorisation for the conduct or the use of a covert human intelligence source does not authorise any criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source (but see section 29B for provision for the authorisation of such conduct).”

(5) After section 29A of that Act insert—

“29B Covert human intelligence sources: criminal conduct authorisations

(1) Subject to the following provisions of this Part, the persons designated for the purposes of this section each have power to grant criminal conduct authorisations.

(2) 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.

(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.

(4) A person may not grant a criminal conduct authorisation unless the person believes—

(a) that the authorisation is necessary on grounds falling within subsection (5);

(b) that the authorised conduct is proportionate to what is sought to be achieved by that conduct; and

(c) that arrangements exist that satisfy such requirements as may be imposed by order made by the Secretary of State.

(5) A criminal conduct authorisation is necessary on grounds falling within this subsection if it is necessary—

(a) in the interests of national security;

(b) for the purpose of preventing or detecting crime or of preventing disorder; or

(c) in the interests of the economic well-being of the United Kingdom.

(6) In considering whether the requirements in subsection (4)(a) and (b) are satisfied, the person must take into account whether what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime.

(7) Subsection (6) is without prejudice to the need to take into account other matters so far as they are relevant (for example, the requirements of the Human Rights Act 1998).

(8) The conduct that is authorised by a criminal conduct authorisation is any conduct that—

(a) is comprised in any activities—

(i) which involve criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source, and

(ii) are specified or described in the authorisation;

(b) consists in conduct by or in relation to the person who is so specified or described as the covert human intelligence source to whom the authorisation relates; and

(c) is carried out for the purposes of, or in connection with, the investigation or operation so specified or described.

(9) If an authorisation under section 29, which authorises the conduct or the use of a covert human intelligence source to whom a criminal conduct authorisation relates, ceases to have effect, the criminal conduct authorisation also ceases to have effect so far as it relates to that covert human intelligence source (but this is without prejudice to whether the criminal conduct authorisation continues to have effect so far as it relates to any other covert human intelligence source).

(10) The Secretary of State may by order—

(a) prohibit the authorisation under this section of any such conduct as may be described in the order; and

(b) impose requirements, in addition to those provided for by subsections (3) and (4) and sections 29C and 29D, that must be satisfied before an authorisation is granted under this section for any such conduct as may be so described.”

2 Criminal conduct authorisations: safeguards for juveniles

(1) After section 29B of the Regulation of Investigatory Powers Act 2000 (inserted by section 1(5)) insert—

“29C Criminal conduct authorisations: safeguards for juveniles

(1) This section applies in relation to the grant of a juvenile criminal conduct authorisation.

(2) “A juvenile criminal conduct authorisation” is an authorisation under section 29B for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source where that source is under the age of 18 (“the juvenile source”).

(3) In addition to satisfying the requirements of section 29B, a person may grant a juvenile criminal conduct authorisation only if—

(a) the person has considered the results of an appropriate risk assessment;

(b) there are exceptional circumstances such that—

(i) it is not reasonably foreseeable in the circumstances as the person believes them to be that any harm to the juvenile source would result from the grant of the authorisation, and

(ii) the person believes the authorisation would be compatible with the need to safeguard and promote the best interests of the juvenile source; and

(c) the person believes that appropriate arrangements for meetings are in force.

(4) For the purposes of subsection (3)(a), “an appropriate risk assessment” means an assessment which—

(a) identifies and evaluates the nature and magnitude of the risks of harm to the juvenile source arising in the course of, or as result of, the conduct authorised by the authorisation; and

(b) is carried out in accordance with provision made by the Secretary of State by regulations under this paragraph.

(5) In subsections (3)(b)(i) and (4)(a), “harm” means—

(a) physical injury; or

(b) psychological distress.

(6) For the purposes of subsection (3)(c), “appropriate arrangements for meetings” are such arrangements for the juvenile source’s case as are necessary for ensuring—

(a) that, at all times when the juvenile source is under the age of 16, there will be a relevant person who will have responsibility for ensuring that an appropriate adult is present at all meetings in relation to the authorisation which take place between the source and a person representing a relevant investigating authority; and

(b) that, at all times when the juvenile source is 16 or 17 years old, there will be a relevant person who will have responsibility for—

(i) ensuring that an appropriate adult is present at all meetings in relation to the authorisation which take place between the source and a person representing a relevant investigating authority, other than any such meeting in relation to which a relevant person decides there are circumstances which justify the absence of an appropriate adult, and

(ii) maintaining a record of the reasons for each such decision that there are circumstances in relation to a meeting which justify the absence of an appropriate adult.

(7) In subsection (6)—

• “appropriate adult”, in relation to a juvenile source, means—

  (a)

  the parent or guardian of the juvenile source; or

  (b)

  any other person who—

  (i)

  has for the time being assumed responsibility for the juvenile source’s welfare, or

  (ii)

  is otherwise qualified to represent the interests of the juvenile source;

• “relevant investigating authority”, in relation to a juvenile criminal conduct authorisation, means the public authority, or (as the case may be) one of the public authorities, for whose benefit the activities of the juvenile source as a covert human intelligence source are to take place;

• “relevant person”, in relation to a juvenile criminal conduct authorisation, means a person holding an office, rank or position with a relevant investigating authority in relation to the authorisation;

and in this subsection, “guardian”, in relation to a juvenile source, has the same meaning as “guardian of a child” in the Children Act 1989 (see section 105 of that Act).

(8) No provision made by or under this section affects the power to make additional provision by order under section 29B(4)(c) or (10) in relation to the grant of a juvenile criminal conduct authorisation.”

(2) The Regulation of Investigatory Powers (Juveniles) Order 2000 (S.I. 2000/2793) is amended in accordance with subsections (3) to (8).

(3) In article 2 (interpretation)—

(a) in the definition of “relevant investigating authority”, after “authority”” insert “, in relation to an authorisation under section 29 of the 2000 Act,”;

(b) after that definition insert—

• ““relevant investigating authority”, in relation to an authorisation under section 29B of the 2000 Act, means the public authority, or (as the case may be) one of the public authorities, for whose benefit the activities as a source of the source to whom the authorisation relates are to take place;

• “relevant person”, in relation to an authorisation under section 29B of the 2000 Act, means a person holding an office, rank or position with a relevant investigating authority in relation to the authorisation;”.

(4) Before article 3 insert—

“Authorisations under section 29 of the 2000 Act”.

(5) In article 3 (sources under 16: prohibition), after “authorisation” insert “under section 29 of the 2000 Act”.

(6) In article 5 (sources under 18: risk assessments etc.), after “An authorisation” insert “under section 29 of the 2000 Act”.

(7) In article 6 (sources under 18: duration of authorisations), after “an authorisation” insert “under section 29 of the 2000 Act”.

(8) After article 6 insert—

“Authorisations under section 29B of the 2000 Act

7 Sources under 16: prohibition

(1) No authorisation under section 29B of the 2000 Act may be granted authorising criminal conduct in the course of, or otherwise in connection with, the conduct of a source if—

(a) the source is under the age of 16; and

(b) the relationship to which the relevant conduct would relate is between the source and—

(i) the source’s parent, or

(ii) any person who has parental responsibility for the source.

(2) “The relevant conduct” means the conduct of the source which the authorised conduct would be in the course of or otherwise in connection with.

8 Sources under 18: additional requirements

(1) An authorisation under section 29B of the 2000 Act may not be granted or renewed in any case where the source to whom the authorisation relates is under the age of 18 at the time of the grant or renewal unless the person granting or renewing the authorisation—

(a) has considered whether the relationship to which the relevant conduct would relate is between the source and—

(i) a relative or guardian of the source, or

(ii) a person who has for the time being assumed responsibility for the source’s welfare; and

(b) where the relationship would so relate, has taken that fact into account as a particular consideration.

(2) In paragraph (1)(a), “the relevant conduct” has the same meaning as in article 7.

9 Sources under 18: arrangements regarding best interests of the source

Where the source to whom an authorisation under section 29B of the 2000 Act relates is under the age of 18, the arrangements referred to in section 29B(4)(c) of the 2000 Act must be such that there is at all times a relevant person who has responsibility for safeguarding and promoting the best interests of the source.

10 Sources under 18: duration of authorisations

In relation to an authorisation under section 29B of the 2000 Act where the source to whom the authorisation relates is under the age of 18 at the time the authorisation is granted or renewed, section 43(3) of the 2000 Act is to have effect as if the period specified in paragraph (b) of that subsection were four months instead of twelve months.”

(9) The amendments made by subsections (3) to (8) to the Regulation of Investigatory Powers (Juveniles) Order 2000 (S.I. 2000/2793) are to be treated as having been made under section 29B(4)(c) or (10) or section 43(8) of the Regulation of Investigatory Powers Act 2000 as the case may be (and may be amended or revoked under those powers accordingly).

3 Criminal conduct authorisations: safeguards for vulnerable adults

After section 29C of the Regulation of Investigatory Powers Act 2000 (inserted by section 2) insert—

“29D Criminal conduct authorisations: safeguards for vulnerable adults

(1) This section applies in relation to the grant of a vulnerable adult criminal conduct authorisation.

(2) “A vulnerable adult criminal conduct authorisation” is an authorisation under section 29B for criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source where that source is a vulnerable adult (“the vulnerable adult source”).

(3) For the purposes of this section, a “vulnerable adult” is a person aged 18 or over who by reason of mental disorder or vulnerability, disability, age or illness, is or may be unable to take care of themselves or to protect themselves against significant harm or exploitation.

(4) In addition to satisfying the requirements of section 29B, a person may grant a vulnerable adult criminal conduct authorisation only if the person—

(a) has considered the results of an appropriate risk assessment;

(b) believes that the risks of harm identified by that risk assessment have been properly explained to and understood by the vulnerable adult source; and

(c) has taken into account the need to safeguard and promote the best interests of the vulnerable adult source.

(5) “An appropriate risk assessment” means an assessment which—

(a) identifies and evaluates the nature and magnitude of the risks of harm to the vulnerable adult source arising in the course of, or as result of, the conduct authorised by the authorisation; and

(b) is carried out in accordance with provision made by the Secretary of State by regulations under this paragraph.

(6) For the purposes of subsections (3), (4)(b) and (5)(a), “harm” means—

(a) physical injury; or

(b) psychological distress.

(7) No provision made by or under this section affects the power to make additional provision by order under section 29B(4)(c) or (10) in relation to the grant of a vulnerable adult criminal conduct authorisation.”

Authorising authorities

4 Authorities to be capable of authorising criminal conduct

(1) Section 30 of the Regulation of Investigatory Powers Act 2000 (persons entitled to grant authorisations under sections 28 and 29 of that Act) is amended in accordance with subsections (2) to (8).

(2) In the heading, for “and 29” substitute “, 29 and 29B”.

(3) In subsection (1), for “and 29” substitute “, 29 and 29B”.

(4) In subsection (2)(a), for “or 29” substitute “, 29 or 29B”.

(5) In subsection (3)(a), for “and 29” substitute “, 29 and 29B”.

(6) In subsection (4)—

(a) in paragraph (a), for “I or II” substitute “A1, 1 or 2”;

(b) omit the “and” at the end of paragraph (a);

(c) in paragraph (b), for “I” substitute “A1 or 1”;

(d) at the end of paragraph (b) insert “; and

(c) in relation to section 29B if it is specified in Part A1 of that Schedule”.

(7) In subsection (5)—

(a) in paragraph (a), for “I or II” substitute “A1, 1 or 2”;

(b) in paragraph (c), for “the other” substitute “another”.

(8) In subsection (7)—

(a) in paragraph (a), for “I or II” substitute “A1, 1 or 2”;

(b) in paragraph (b), for the words from “from” to the end of that paragraph substitute “from—

(i) Part 1 or 2 to Part A1 of that Schedule, or

(ii) Part 2 to Part 1 of that Schedule,”.

(9) In Schedule 1 to that Act (relevant public authorities for the purposes of Part 2 of that Act), before Part 1 (relevant authorities for the purposes of sections 28 and 29 of that Act) insert—

“PART A1 Relevant authorities for the purposes of ss. 28, 29 and 29B

Police forces etc

A1 Any police force.

B1 The National Crime Agency.

C1 The Serious Fraud Office.

The intelligence services

D1 Any of the intelligence services.

The armed forces

E1 Any of Her Majesty’s forces.

Revenue and Customs

F1 Her Majesty’s Revenue and Customs.

Government departments

G1 The Department of Health and Social Care.

H1 The Home Office.

I1 The Ministry of Justice.

Other bodies

J1 The Competition and Markets Authority.

K1 The Environment Agency.

L1 The Financial Conduct Authority.

M1 The Food Standards Agency.

N1 The Gambling Commission.”

Criminal injuries compensation

5 Criminal injuries compensation

After section 27 of the Regulation of Investigatory Powers Act 2000 (lawful surveillance etc.) insert—

“27A Section 27: criminal injuries compensation for s. 29B conduct

For the purposes of—

(a) the Criminal Injuries Compensation Act 1995,

(b) the Scheme made under that Act,

(c) the Criminal Injuries Compensation (Northern Ireland) Order 2002 (S.I. 2002/796 (N.I. 1)), and

(d) the Scheme made under that Order,

section 27(1) has no effect in relation to conduct authorised under section 29B.”

Notification to Judicial Commissioner

6 Notification to a Judicial Commissioner

After section 32B of the Regulation of Investigatory Powers Act 2000 insert—

“32C Notification of criminal conduct authorisations

(1) This section applies where a person grants or cancels an authorisation under section 29B.

(2) The person must give notice that the person has granted or cancelled the authorisation to a Judicial Commissioner.

(3) A notice given for the purposes of subsection (2) must be given—

(a) in writing as soon as reasonably practicable and, in any event, before the end of the period of 7 days beginning with the day after that on which the authorisation to which it relates is granted or, as the case may be, cancelled; and

(b) in accordance with such arrangements made for the purposes of this paragraph by the Investigatory Powers Commissioner as are for the time being in force.

(4) A notice under this section relating to the grant of an authorisation under section 29B must—

(a) set out the grounds on which the person giving the notice believes that the requirements of section 29B(4) are satisfied in relation to the authorisation; and

(b) specify the conduct that is authorised under section 29B by the authorisation.

(5) Any notice that is required by this section to be given in writing may be given, instead, by being transmitted by electronic means.”

Oversight by the Investigatory Powers Commissioner

7 Oversight by the Investigatory Powers Commissioner

(1) The Investigatory Powers Act 2016 is amended as follows.

(2) In section 229 (main oversight functions), after subsection (4), insert—

“(4A) In keeping matters under review in accordance with subsection (3)(e), the Investigatory Powers Commissioner must, in particular, keep under review the exercise of the power to grant or renew authorisations under section 29B of the Regulation of Investigatory Powers Act 2000.

(4B) In keeping under review the exercise of the power mentioned in subsection (4A), the Investigatory Powers Commissioner must, in particular, keep under review whether public authorities are complying with any requirements imposed on them by virtue of Part 2 of the Regulation of Investigatory Powers Act 2000 in relation to juvenile criminal conduct authorisations and vulnerable adult criminal conduct authorisations.

(4C) For the purposes of subsection (4B)—

(a) “a juvenile criminal conduct authorisation” is an authorisation under section 29B of the Regulation of Investigatory Powers Act 2000 where the covert human intelligence source to whom the authorisation relates is under the age of 18; and

(b) “a vulnerable adult criminal conduct authorisation” is an authorisation under section 29B of the Regulation of Investigatory Powers Act 2000 where the covert human intelligence source to whom the authorisation relates is a vulnerable adult within the meaning of section 29D(3) of that Act.”

(3) In section 234 (annual and other reports of the Investigatory Powers Commissioner), in subsection (2), after paragraph (b) insert—

“(ba) information about the use of the power to grant or renew authorisations under section 29B of the Regulation of Investigatory Powers Act 2000,”.

General and final provision

8 Consequential provision

The Schedule contains consequential amendments.

9 Commencement and transitional provision

(1) This section and section 10 come into force on the day on which this Act is passed.

(2) The other provisions of this Act come into force on such day as the Secretary of State may by regulations appoint; and different days may be appointed for different purposes or areas.

(3) The Secretary of State may by regulations make transitional or saving provision in connection with the coming into force of any provision of this Act.

(4) The power to make regulations under subsection (3) includes power to make different provision for different purposes or areas.

(5) Regulations under this section are to be made by statutory instrument.

10 Extent and short title

(1) Subject to subsection (2), this Act extends to England and Wales, Scotland and Northern Ireland.

(2) Any provision of this Act which amends or repeals an enactment has the same extent as the enactment amended or repealed.

(3) This Act may be cited as the Covert Human Intelligence Sources (Criminal Conduct) Act 2021.

Section 8

SCHEDULE Consequential amendments

PART 1 Regulation of Investigatory Powers Act 2000

Introductory

1 The Regulation of Investigatory Powers Act 2000 is amended as follows.

Orders under section 30 for Northern Ireland

2 In section 31 (orders under section 30 for Northern Ireland), in subsection (1), after “authorisations” insert “under section 28 or 29”.

Granting authorisations

3 In the heading before section 32A (authorisations requiring judicial approval), after “approval” insert “or notification”.

4 (1) Section 33 (rules for grant of authorisations) is amended as follows.

(2) In subsection (1), for “or 29” substitute “, 29 or 29B”.

(3) In subsection (1ZB), for “or 29” substitute “, 29 or 29B”.

(4) In subsection (1ZC)(b), for “or 29” substitute “, 29 or 29B”.

(5) In subsection (1A), for “or 29” substitute “, 29 or 29B”.

(6) In subsection (2), for “or 29” substitute “, 29 or 29B”.

5 (1) Section 33A (further provision about granting authorisations in cases where the National Crime Agency is party to a collaboration agreement) is amended as follows.

(2) In subsection (2), for “or 29” substitute “, 29 or 29B”.

(3) In subsection (3), for “or 29” substitute “, 29 or 29B”.

(4) In subsection (4), for “or 29” substitute “, 29 or 29B”.

General rules about grant, renewal, duration and cancellation

6 (1) Section 43 (general rules about grant, renewal and duration) is amended as follows.

(2) In subsection (3)(b), after “source” insert “or is an authorisation under section 29B”.

(3) In subsection (6), after “source” insert “or an authorisation under section 29B”.

7 (1) Section 45 (cancellation of authorisations) is amended as follows.

(2) In subsection (1)—

(a) in paragraph (a), after “29(2)(a) and (b)” insert “, 29B(4)(a) and (b)”;

(b) omit the “or” at the end of that paragraph;

(c) at the end of paragraph (b) insert—

“(c) in the case of an authorisation under section 29B where the source is under the age of 18 (“the juvenile source”), the person—

(i) becomes aware of circumstances in which it is reasonably foreseeable that harm, within the meaning of section 29C(5), to the juvenile source would result from the authorisation,

(ii) is satisfied that the authorisation would no longer be compatible with the need to safeguard and promote the best interests of the juvenile source, or

(iii) is satisfied that arrangements for the juvenile source’s case that satisfy the requirements of subsection (3)(c) of section 29C no longer exist; or

(d) in the case of any authorisation under section 29B, the person is satisfied that any arrangements for the source’s case required to satisfy any requirements mentioned in subsection (4)(c) of that section no longer exist”.

(3) In subsection (2), for “either” substitute “any”.

(4) In subsection (3), for “either” substitute “any”.

8 In section 46 (restrictions on authorisations extending to Scotland)—

(a) in subsection (2)(d), after “conduct of” insert “or in relation to”;

(b) after subsection (4) insert—

“(5) No person may grant or renew a section 29B(5)(b) authorisation if it appears to the person that all or some of the conduct authorised by the section 29B(5)(b) authorisation is likely to take place in Scotland.

(6) But subsection (5) does not apply if the grant or renewal of the section 29B(5)(b) authorisation is for a purpose relating to a reserved matter (within the meaning of the Scotland Act 1998).

(7) For the purposes of subsections (5) and (6), “a section 29B(5)(b) authorisation” means an authorisation under section 29B in so far as it is granted or, as the case may be, renewed on the grounds that it is necessary on grounds falling within section 29B(5)(b).”

Authorising authorities

9 (1) Part 1 of Schedule 1 (relevant authorities for the purposes of sections 28 and 29) is amended as follows.

(2) In the heading of the Part, after “purposes” insert “only”.

(3) Omit—

(a) paragraph 1 (any police force);

(b) paragraph 2 (National Crime Agency);

(c) paragraph 4 (Serious Fraud Office);

(d) paragraph 5 (intelligence services) and the italic heading before it;

(e) paragraph 6 (armed forces) and the italic heading before it;

(f) paragraph 7 (Her Majesty’s Revenue and Customs) and the italic heading before it;

(g) paragraph 12 (Department of Health and Social Care);

(h) paragraph 13 (Home Office);

(i) paragraph 13ZA (Ministry of Justice);

(j) paragraph 18 (Environment Agency);

(k) paragraph 19 (Financial Conduct Authority);

(l) paragraph 20 (Food Standards Agency);

(m) paragraph 20A (Gambling Commission);

(n) paragraph 20B (Competition and Markets Authority).

PART 2 Other enactments

Police Reform Act 2002

10 In section 19 of the Police Reform Act 2002 (use of investigatory powers by or on behalf of the Director General), after subsection (4) insert—

“(5) But the reference in subsection (1)(b) to the conduct of covert human intelligence sources does not include conduct which may be authorised under section 29B of that Act (criminal conduct authorisations).”

Gambling Act 2005

11 In Schedule 16 to the Gambling Act 2005 (minor and consequential amendments), omit paragraph 14 and the italic heading before it.

Serious Crime Act 2007

12 In Schedule 12 to the Serious Crime Act 2007 (Revenue and Customs: regulation of investigatory powers), omit paragraph 28.

Crime and Courts Act 2013

13 The Crime and Courts Act 2013 is amended as follows.

14 In Schedule 1 (the National Crime Agency and its officers), in paragraph 6A, after sub-paragraph (3)(a)(ii) insert—

“(iia) section 29B (covert human intelligence sources: criminal conduct);”.

15 In Schedule 8 (minor and consequential amendments and repeals), omit paragraph 99.

Coronavirus Act 2020

16 (1) Sub-paragraph (2) applies to—

(a) section 22 of the Coronavirus Act 2020 (appointment of temporary Judicial Commissioners),

(b) regulation 3(1) of the Investigatory Powers (Temporary Judicial Commissioners and Modification of Time Limits) Regulations 2020 (S.I. 2020/360), and

(c) any appointment which was made under that regulation and has effect immediately before the coming into force of this paragraph.

(2) In section 22(1), regulation 3(1) or the appointment, references to functions conferred on Judicial Commissioners by—

(a) the Regulation of Investigatory Powers Act 2000,

(b) the Investigatory Powers Act 2016,

are to be read as including references to functions conferred on Judicial Commissioners by those Acts by virtue of amendments made by this Act.