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Covert Human Intelligence Sources (Criminal Conduct) Act 2021

Contents

Commentary on provisions of Act

Section 1: Authorisation of criminal conduct

  1. Section 1(1) and (2) amend section 26 of RIPA to introduce a new category of conduct to which Part II applies: criminal conduct in the course of, or otherwise in connection with, the conduct of covert human intelligence sources.
  2. Section 1(3) inserts a new subsection (8A) into section 26. New subsection (8A) provides a definition of what is meant by "criminal conduct in the course of, or otherwise in connection with, the conduct of a covert human intelligence source".
  3. Section 1(4) amends section 29 of RIPA, inserting new subsection (6ZA). New subsection (6ZA) provides that a section 29 authorisation can no longer be used to authorise any criminal conduct. The effect of the Act is to require that an authorisation under new section 29B must instead be used to authorise criminal conduct. Section 1(5) inserts new section 29B into RIPA. Section 29B provides a power for a "criminal conduct authorisation" to be granted. Section 29B has several components.
  4. Subsection (1) provides designated persons with the power to grant criminal conduct authorisations.
  5. Subsection (2) provides a definition of a "criminal conduct authorisation".
  6. Subsection (3) requires that a section 29 authorisation for the use and conduct of a CHIS must either already be in place before a criminal conduct authorisation is granted, or must be granted at the same time as the criminal conduct authorisation. The reason for that is that it is a bolt-on provision for criminal conduct and is reliant on the fact that other requirements and safeguards that are already set out in section 29 of RIPA will apply to authorisations granted under new section 29B.
  7. Subsection (4) sets out the test that must be satisfied before a criminal conduct authorisation may be granted: it must be necessary for one or more of the three specified grounds in subsection (5); it must be proportionate; and must satisfy any requirements imposed by an order made by the Secretary of State. It is possible for a public authority to take a precautionary approach and grant a criminal conduct authorisation in circumstances in which the public authority is uncertain whether the conduct to be authorised would amount to a criminal offence. However, the criminal conduct authorisation will only have effect to the extent that the authorised conduct would constitute crime.
  8. A designated person may not grant a criminal conduct authorisation unless he or she believes that the authorisation is necessary on one of the grounds listed in subsection (5).
  9. Subsections (6) and (7) set out further considerations for the person granting the authorisation to take into account when deciding whether an authorisation is necessary and proportionate, where they are relevant. This includes the requirements of the Human Rights Act 1998.
  10. Subsection (8) specifies the nature and limits for the grant of a criminal conduct authorisation. The authorisation must specify or describe the conduct being authorised. The criminal conduct that may be authorised is not limited to criminal conduct by a CHIS: a criminal conduct authorisation may authorise conduct by someone else "in relation to" a CHIS, namely those within a public authority that are involved in or affected by the authorisation.
  11. The conduct that is authorised must relate to a CHIS who is specified or described in the authorisation. The conduct being authorised must also relate to an investigation or operation and that investigation or operation must be specified or described in the authorisation.
  12. If a criminal conduct authorisation is granted by a person, and the authorisation does not meet the requirements of new section 29B, the authorisation has no effect in relation to any criminal conduct.
  13. Subsection (9) provides that a criminal conduct authorisation granted to a CHIS under section 29B ceases to have effect at the same time as the section 29 authorisation that relates to that CHIS ceases to have effect.
  14. Subsection (10) confers on the Secretary of State a power to make secondary legislation. This may be used to either prohibit the authorisation of specified conduct, or to impose additional requirements that must be satisfied for the authorisation of specified criminal conduct.
  15. It is possible for a section 29B criminal conduct authorisation to relate to more than one CHIS (in the same way that it is possible for a section 29 use and conduct authorisation to relate to more than one CHIS). Where a section 29B criminal conduct authorisation relates to more than one CHIS, each individual CHIS would need to be specified or described in the authorisation, and the authorisation would need to relate to a particular investigation or operation. The section 29B authorisation could only be granted at the same time as, or after, a related section 29 authorisation had been granted in relation to the CHIS concerned.
  16. It is possible that one criminal conduct authorisation may relate to multiple section 29 authorisations. Where a section 29 use authorisation ceases to have effect, the criminal conduct authorisation will cease to have effect in as much as it relates to that section 29 authorisation (and the CHIS to whom that section 29 authorisation relates) but will continue to have effect so far as it relates to any other section 29 authorisation(s) that have effect.
  17. Where there is a section 29 CHIS authorisation in place that itself relates to multiple CHIS, a single criminal conduct authorisation could similarly cover all of those CHIS, provided that the circumstances are such that the CHIS are connected by a single operation or investigation.

Section 2: Criminal conduct authorisations: safeguards for juveniles

  1. Section 2(1) inserts section 29C which provides enhanced safeguards for the authorisation of juvenile sources. Subsection (2) provides a definition of a "juvenile criminal conduct authorisation".
  2. Subsection (3) sets out the additional requirements for granting a juvenile criminal conduct authorisation. These requirements limit the granting of an authorisation to where the risks of harm to the juvenile as a result of the authorisation have been considered, where there are exceptional circumstances and where an appropriate adult is in attendance at relevant meetings between a juvenile source and a public authority, as required.
  3. Subsections (4) and (5) provide definitions of an "appropriate risk assessment" and "harm".
  4. Subsection (6) requires an appropriate adult to attend all meetings between a person from a public authority and a juvenile source under the age of 16 that relate to the criminal conduct authorisation. An appropriate adult must also attend all meetings in relation to the authorisation where the juvenile source is between 16 or 17 years old, unless there is a justification for them not to be present. That justification must be recorded.
  5. Subsection (7) provides definitions of an "appropriate adult", "relevant investigating authority" and "relevant person".
  6. Subsections (3) to (8) amend the Regulation of Investigatory Powers (Juveniles) Order to provide further safeguards for the authorisation of juvenile criminal conduct authorisations. This will ensure that the existing safeguards that are in place when granting a use and conduct authorisation for a juvenile source, also apply when the juvenile source is being tasked to participate in criminal conduct.
  7. Subsection (9) provides that the amendments to the Regulation of Investigatory Powers (Juveniles) Order are made using the order making powers in the Act or section 43(8) of RIPA and can be amended or revoked using the same order making powers.

Section 3: Criminal conduct authorisations: safeguards for vulnerable adults

  1. Section 3(1) inserts section 29D which provides enhanced safeguards when granting criminal conduct authorisations for vulnerable adult CHIS.
  2. Subsection (2) provides a definition of a "vulnerable adult criminal conduct authorisation". Subsection (3) provides a definition of a "vulnerable adult".
  3. Subsection (4) sets out the safeguards that must be in place when granting a vulnerable adult criminal conduct authorisation. These requirements are in addition to those imposed by section 29B and limit the granting of an authorisation to where the risks of harm to the source as a result of the authorisation have been considered, where those risks have been explained and understood by the source, and where the best interests of the source have been taken into account.
  4. Subsections (5) and (6) provide definitions of an "appropriate risk assessment" and "harm".
  5. Subsection (7) sets out that the amendments made in this section do not affect the power to grant additional requirements in the future using the order making powers in the Act.

Section 4: Authorities to be capable of authorising criminal conduct

  1. Section 4 amends section 30 of RIPA in order to make provision for certain public authorities to be able to grant criminal conduct authorisations.
  2. Section 4(3) amends section 30(1) to bring criminal conduct authorisations within the scope of the power that is conferred on the Secretary of State by that provision. That power enables the Secretary of State to specify by order that persons holding such offices, ranks or positions within relevant public authorities, are designated to grant criminal conduct authorisations.
  3. Section 4(4) amends section 30(2) to bring criminal conduct authorisations within the scope of that provision. The effect is that where a criminal conduct authorisation is being granted in combination with an authorisation to carry out intrusive surveillance, the authorisation must be granted personally by the Secretary of State.
  4. Section 4(5) amends section 30(3) to bring criminal conduct authorisations within the scope of the power that is conferred on the Secretary of State by that provision. Subsection (3) enables the Secretary of State to restrict the authorisations that may be granted by persons holding particular ranks, offices or positions; or provide that authorisations given in such circumstances, or for such purposes, must be granted by persons holding specified rank, office or position within the relevant authority.
  5. Section 4(6) amends section 30(4); which makes provision for the public authorities that are relevant public authorities for the purposes of granting authorisations. A public authority is a relevant authority for these purposes if it is listed in new Part A1 of Schedule 1 to RIPA.
  6. Section 4(7) amends section 30(5), which confers a power on the Secretary of State to amend Schedule 1. The power enables the Secretary of State to add or remove public authorities from Part A1, or make any consequential changes necessary as a result of the change in the name of a public authority that is listed in that Part.
  7. Section 4(8) makes corresponding changes to section 30(7), so that the exercise of the power to add public authorities to Part A1 will be subject to the approval of Parliament by way of the affirmative procedure.
  8. Section 4(9) inserts new Part A1 into Schedule 1 to RIPA; listing the following public authorities:
  • Any police force
  • The National Crime Agency
  • Any of the intelligence services
  • Any of Her Majesty’s Forces
  • Her Majesty’s Revenue and Customs
  • The Department of Health and Social Care
  • The Home Office
  • The Ministry of Justice
  • The Competition and Markets Authority
  • The Environment Agency
  • The Financial Conduct Authority
  • The Food Standards Agency
  • The Gambling Commission
  • The Serious Fraud Office

Section 5: Criminal Injuries Compensation

  1. Section 5 inserts new Section 27A. The effect of this provision is that a criminal conduct authorisation granted under section 29B does not affect a person’s entitlement to claim criminal injuries compensation under the specified schemes.

Section 6: Notification to a Judicial Commissioner

  1. Section 6 inserts section 32C which requires all criminal conduct authorisations to be notified to a Judicial Commissioner at the Investigatory Powers Commissioner’s Office (IPCO) within 7 days of the authorisation being granted.
  2. Subsections (1) and (2) set out when the notification requirement applies.
  3. Subsection (3) sets out the timeframe for the notice to be given and section 6(4) sets out what a notification must include. The conduct that has been authorised under section 29B can begin as soon as the authorisation has been granted by the authorising officer; there is no requirement for the authorising officer to wait for comments from a Judicial Commissioner before commencing the activity.
  4. Section 6(5) provides that a notice may be given in writing or transmitted by electronic means.

Section 7: Oversight by the Investigatory Powers Commissioner

  1. Section 7(1) amends the Investigatory Powers Act 2016 (IPA) to emphasise the oversight arrangements that will apply to the public authorities’ use of the power to grant criminal conduct authorisations.
  2. Section 7(2) amends section 229 of the IPA. Subsection (4A) inserts a requirement for the Investigatory Powers Commissioner, when keeping matters under review in accordance with section 229(3)(e) or (g), to pay particular attention to public authorities’ use of the power to grant criminal conduct authorisations under new section 29B.
  3. Subsection (4B) inserts a requirement for the Investigatory Powers Commissioner, when keeping matters under review in accordance with section 229(4A), to pay particular attention to public authorities’ compliance with the enhanced safeguards that are required for the authorisation of juvenile criminal conduct authorisations and vulnerable adult criminal conduct authorisations. Subsection (4C) provides definitions of juvenile criminal conduct authorisations and vulnerable adult criminal conduct authorisations.
  4. Section 7(3) amends section 234 of IPA to require the Investigatory Powers Commissioner to include information about public authorities’ use of criminal conduct authorisations in their annual report. This may include information such as statistics on relevant public authorities’ use of the power, the operation of safeguards in relation to authorisations, and errors. The requirement will be subject to the existing protections in the IPA for information that relates to matters such as national security and the prevention or detection of serious crime.

Section 8: Consequential provision

  1. This section introduces Schedule 12 to the Act, which contains consequential amendments. These amendments are explained later in the explanatory notes under ‘Schedule’.

Section 9: Commencement and transitional provision

  1. Section 9(1) and (2) set out how the Act will be brought into force.
  2. Section 9(3), (4) and (5) provide the Secretary of State with a power to make transitional or saving provisions in relation to any provision in the Act, by statutory instrument.

Section 10: Extent and short title

  1. Section 10(1) provides that the Act extends to the whole of the United Kingdom. This is subject to section 10(2) which provides that a provision of the Act that amends another enactment has the same territorial extent as that enactment.
  2. Section 10 (3) gives the title by which the Act can be referred to.

Schedule: Consequential Amendments

  1. Part 1 of the Schedule makes minor and consequential amendments to RIPA.
  2. Paragraph (2) amends section 31 of RIPA so that the power of the First Minister and deputy First Minister in Northern Ireland to make an order under section 30 of RIPA applies only to authorisations under section 28 (directed surveillance) and section 29 (CHIS) and does not apply in relation to CHIS criminal conduct authorisations.
  3. Paragraphs (4) to (7) amend other provisions to extend their requirements to section 29B authorisations, including section 33 (rules for granting authorisations), and section 33A (authorisations where the NCA is party to a collaboration agreement), section 43 (general rules about grant, renewal and duration), and section 45 (cancellation of authorisations).
  4. Paragraph (8) amends section 46 RIPA to remove the ability for public authorities to grant criminal conduct authorisations that are necessary for preventing or detecting crime, or preventing disorder, where the authorisation is for a purpose that relates to a devolved matter and where some or all of the conduct authorised is likely to take place in Scotland.
  5. Paragraph (9) amends Part 1 of Schedule 1 to move the relevant public authorities that can grant a criminal conduct authorisation into Part A1 of Schedule 1.
  6. Part 2 of the schedule makes minor and consequential amendments to other enactments.

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