Covert and deceptive policing in England and Wales: Issues in regulation and practice

European Journal of Crime, Criminal Law and Criminal Justice

Volumn 4, Issue 4, 1996, Pages 316-334

  Maguire, M ^a   John, T ^b  

^a Department of Criminology and Criminal Justice ^*  (United Kingdom)

^b UNIVERSITY OF WALES   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 52549089602     PISSN: 09289569     EISSN: 15718174     Source Type: Journal    
DOI: 10.1163/157181796X00177     Document Type: Article

References (90)

1. For general descriptions of detective practice in local CID offices and in specialist squads, M. Maguire and C. Norris, The Conduct and Supervision of Criminal Investigations. Research Study No. 5, Royal Commission on Criminal Justice (London: HMSO, 1992) pp. 32-54, 71-96.
2. For analysis of the extent of use made of proactive methods at a local level, see M. Maguire and T. John, Intelligence, Surveillance and Informants: Integrated Approaches, Police Research Group Crime and Prevention Series, Paper No.64 (London: Home Office, 1995) pp. 8-15.
3. See, for example, Audit Commission, Tackling Crime Effectively (London: Audit Commission, 1993) pp. 35-38
4. and M. Maguire and T. John, Tackling Crime Effectively, op cit., pp. 23-24.
5. For a wide-ranging account of the use of such methods in the USA see G. Marx, Undercover: Police Surveillance in America (Berkeley: University of California Press, 1989).
6. For international and comparative perspectives, see C. Fijnaut and G. Marx, Police Surveillance in Comparative Perspective (The Hague: Kluwer Law International, 1995);
7. and C. Joubert, 'Undercover Policing - A Comparative Study', 7 European Journal of Crime, Criminal Law and Criminal Justice ( 1994) pp. 18-38.
8. For a comprehensive guide to the Act, see M. Zander, The Police and Criminal Evidence Act 1984 (London: Sweet and Maxwell, 1985)
9. This was announced by the Home Secretary in the Summer of 1996. Effectively an amalgamation of the six existing Regional Crime squads, the new squad will have its own Chief Constable and an overseeing authority. It is conceived as a 'national response to threats on a national scale' from 'serious professional criminals working together in shifting alliances' (The Guardian, 3 July 1996).
10. This new function, sanctioned under the Security Service Act 1996, has been described as part of the 'peace dividend' from the end of the Cold War and the ceasefire in Northern Ireland, whereby the Security Service (MI5) was left with a considerable amount of spare capacity. Rather than undergo a major reduction in manpower and resources, senior administrators in MIS persuaded the government that they could make an important contribution to the control of organized crime. The Act allows them to take part in investigations 'in support of the prevention and detection of serious crime'. Their main task is currently envisaged as intelligence gathering, although they may eventually take a more active operational role - a possibility which many view with concern, owing to the largely unaccountable nature of secret service activity (see, for example, L. Lustgarten and L. Leigh, In From the Cold: National Security and Parliamentary Democracy, Oxford: Clarendon Press, 1994). Questions also arise about the possibility of security service agents being allowed to give evidence in court behind screens to protect their anonymity.
11. 14 September 1994, Central Criminal Court (Ognall J.).
12. Audit Commission, In From the Cold: National Security and Parliamentary Democracy, op cit., p. 54.
13. For a detailed account of this process in two police forces, see M. Maguire and T. John, In From the Cold: National Security and Parliamentary Democracy, op cit., pp. 31-47.
14. Both 1990 and 1991 saw unprecedented rises (of 17 and 16 per cent) in the totals of recorded offences in England and Wales, with particularly sharp increases in vehicle-related theft and other property offences. This generated a great deal of political and media debate about the inadequacies of the police and criminal justice system in dealing with young persistent offenders, and fuelled a major shift towards 'tougher' crime and sentencing policies. (For further discussion of crime trends in England and Wales, see M. Maguire, 'Crime Statistics, Patterns and Trends: Changing Patterns and their Implications', in M. Maguire, R. Morgan and R. Reiner (eds), The Oxford Handbook of Criminology (Oxford: Oxford University Press, 1994) pp. 256-259
15. and passim; for a brief account of the volte-face in criminal justice policy, see T. Newburn, Crime and Criminal Justice Policy (London: Longman, 1995) pp. 121-124
16. The United States Drugs Enforcement Agency has for several years pursued a proselytizing policy, particularly in Latin America and Europe, for an uncompromising approach to the policing of drug trafficking, taking the view that a 'war' against drugs has to be fought on a global basis. There are several accounts of cases in which DEA agents have operated illegally in other countries or have persuaded overseas police forces to adopt methods which push at or go beyond the boundaries of local laws (see, for example, E. Nadelmann, 'US Police Activities in Europe' in C. Fijnaut, ed., The Internationalization of Police Cooperation in Western Europe (Deventer, Holland: Kluwer Law and Taxation Publishers, 1993) pp. 149-152;
17. and E. Nadelmann, 'The DEA in Europe' in C. Fijnaut and G. Marx, eds., Police Surveillance in Comparative Perspective (The Hague, Kluwer Law International, 1995)).
18. This series of highly publicised cases in which convictions were found 'unsafe and unsatisfactory' by the appeal courts, spanned both terrorist and non-terrorist murder cases, several of them dating back to the 1970s. They led eventually to the setting up of the Royal Commission on Criminal Justice (London: HMSO, 1992).
19. They also contributed to an increased unwillingness on the part of the courts to accept evidence from police officers of non-taped 'confessions' claimed to have been made outside interview rooms (for example, on arrest, or in a police vehicle). For a brief overview of the main cases, see J. Rozenberg, 'Miscarriages of Justice' in S. Casale and E. Stockdale (eds), Stresses in the Criminal Justice System (London: Blackstone, 1992) pp. 91-117.
20. There are differences between academics in their assessment of the overall impact of PACE, ranging from the views of M. McConville, A. Sanders and R. Leng The Case for the Prosecution (London: Routledge, 1991)
21. whose research suggests that the police quickly devised effective ways of circumventing the rules, to those of B. Irving and I. McKenzie Regulating Custodial Interviews: The Effects of the Police and Criminal Evidence Act 1984 (London: Police Foundation, 1988)
22. and D. Brown Detention at the Police Station Under the Police and Criminal Evidence Act 1984, Home Office Study No. 104 (London: Her Majesty's Stationery Office, 1989), who found it to have had a considerable impact on police attitudes and practice.
23. The weight of opinion seems to be that the introduction of tape recording and easier access to legal advice may have reduced the use of oppressive tactics or blatant trickery to obtain confessions, but that despite this there have not been major changes in rates of admissions during interviews nor in overall conviction rates (useful papers on these and related topics can be found in S. Field and P. Thomas (eds), Justice and Efficiency? The Royal Commission on Criminal Justice (Oxford: Blackwell, 1994)
24. and in D. Morgan and G. Stephenson, Suspicion and Silence: The Right to Silence in Criminal Investigations (London: Blackstone Press, 1994).
25. However, a major new factor has been introduced since the bulk of the 'PACE' research was undertaken. It may be that the abolition of the so-called 'right of silence' under the Criminal Justice and Public Order Act 1994 - whereby refusal to answer questions put in a police interview can now be taken into account in court as evidence against the suspect - has swung the pendulum back and strengthened the police hand in interviews (see M. Maguire M and C. Norris, 'Police Investigations: Practice and Malpractice', Journal of Law and Society, Special Issue, 1994, pp. 72-84;
26. and M. Maguire, 'The wrong message at the wrong time? The present state of investigative practice' in D. Morgan and G. Stephenson, Journal of Law and Society, Special Issue, op cit., pp. 39-49.
27. M. Maguire and T. John (Journal of Law and Society, Special Issue, op cit.) found considerable optimism among ordinary police officers about the potential of proactive strategies for combatting persistent offenders, intelligence-driven policing being widely described as 'the way forward'.
28. For example, in Germany, following several years of debate and of ambiguity in court decisions, the 1991 1 Organized Crime Act formally legalized undercover operations, with a requirement that they be approved by a prosecutor and employed only when less intrusive tactics were deemed not to be feasible (E. Nadelmann, 1995, Journal of Law and Society, Special Issue, op cit., p. 295).
29. In the Netherlands, the Van Traa inquiry into police malpractice surrounding controlled deliveries (Concerning Investigation (Inzake Opsporing)): Parliamentary Enquiry Committee, 1 February 1996) is also likely to lead to comprehensive legislation.
30. G. Marx, Concerning Investigation (Inzake Opsporing), op cit., p. 2. Marx's full phrase was 'an almost imperceptible surveillance creep', although he would probably now omit this qualification.
31. Malone v. UK ( 1984) 7 EHRR 14, ECt HR. Article 8 states that: 1. 'Everyone has the right to respect for his private and family life, his home and his correspondence. 2. 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.' The Court held that 'the law must be sufficiently clear in its terms to give citizens an adequate indication as to the circumstances in which and the conditions on which public authorities are empowered to resort to this secret and potentially dangerous interference with the right to respect for private life and correspondence.' (7 EHRR 14 at 40-41).
32. Interception of Communications Act 1985, s.1 and s.2(1)(2). The interception must be 'in the interests of national security', 'for the purpose of preventing serious crime', or 'for the purpose of safeguarding the economic well-being of the United Kingdom'.
33. Interception of Communications Act 1985, s.9( 1 )(b).
34. R v. Preston [ 1993] 4 All ER 638, [1994] 2 AC 130.
35. In R v. Efjik [1994] 3 WLR 583 (HL), the House of Lords deemed that a conversation on a domestic cordless telephone did not fall under the definition of a 'communication by means of a public telecommunications system' (s 1 of the Interception of Communications Act 1985)
36. and hence intercepting it without warrant did not constitute a breach of the Act. (The interception was made by recording the local, short wave emissions on an FM radio receiver from a nearby building.) In R v. Governor of Belmarsh Prison and Another ex p Martin [1995] 2 All ER 231
37. the same principle was applied to the interception of an inmate's conversation on a pay phone located on a prison wing (see also R v. Ahmed and others, 29 March 1994, reported in [ 1995] Crim. L.R., 247).
38. Guidelines on the Use of Equipment in Police Surveillance Operations, issued to police authorities by the Home Office and deposited in the House of Commons library in December, 1984. They state that, if a recording is to be made, authorization should be obtained from a Chief Constable, but otherwise may be granted at Inspector level, valid for one month.
39. R. v. Khan (Sultan) [1996] 3 All ER 289. It is interesting that most cases involving challenges to the police use of electronic surveillance have concerned aural rather than visual devices. One potentially important case involving a video device placed in a house, that in which a private prosecution was brought for the racial murder of Mr Stephen Lawrence, collapsed for other reasons, so the surveillance issue was not tested.
40. Section 78(1) of the Police and Criminal Evidence Act 1984 provides that, 'in any proceedings the court may refuse to allow evidence on which the prosecution seeks 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.'
41. R v. Sang [1979] 2 All ER 1222, [ 1980] AC 402.
42. At Khan p. 298 (Lord Nolan).
43. At Khan p. 298 (Lord Nolan).
44. At Khan p. 302.
45. The Khan judgement is broadly in tune with those of the European Court in Schenk v. Switzerland ( 1988, 13 ECRR 242, ECtHR), where it was held that evidence from illegal telephone taps could be admitted without breaching the Article 6 right to a fair trial; and, more recently
46. Ludi v. Switzerland (15 June 1992), where it was held that a person engaged in serious criminal activity cannot have a normal expectation of privacy (in this case, his telephone had been tapped and his private life interfered with by the activities of an undercover agent).
47. At Khan p. 295.
48. At Khan p. 302 (Lord Nolan).
49. At p. 292 (Lord Slynn of Hadley).
50. Other 'bugging' cases in which such challenges have failed include those in which listening devices were placed in police interview rooms or cells (notably R v. Ali (1991) The Times, 19 February
51. and R v. Bailey (1993) The Times 22 March)
52. and, more significantly, that of Michael Govell, a target of a police operation who was not charged with any offence. Govell applied for judicial review of the handling of a complaint he had made against the police after discovering that officers had drilled a hole for a listening device in the wall of his home. Neither the Department of Public Prosecutions nor the Police Complaints Authority had found any reason to take action against the police officers involved and their view was upheld in the Divisional Court, where the action was dismissed (R v. Chief Constable of West Yorkshire Police ex p Govell, QBD, 23 May 1994). This case is now being taken to Europe.
53. This is despite public statements by the police that they would have no objection to regulation by means of application to a judge (see police evidence to the Home Affairs Committee on Organised Crime, 1994-5 HC 18, pp. 124, 136).
54. For a general discussion of accountabillty issue in relation to the secret services, see L. Lustgarten, Home Affairs Committee on Organised Crime, op cit.
55. Police and Criminal Evidence Act 1984 (s.66): Codes of Practice (London, Her Majesty's Stationery Office, 1991), Section C.
56. (1992) Crim L.R. 729.
57. See also Law Society Gazette 1994 91(34) pp. 4-5
58. and Justice of the Peace and Local Government Law, 158 (37), 10 September 1994, pp. 591-592. Another factor which affected the decision was the absence of a contemporaneous record of the conversation
59. (1994) The Times, 15 September, p. 1.
60. (1994) The Times, 11 March.
61. An analogous attempt to circumvent the PACE Codes, by secretly recording the efforts of the alleged victim of a rape to elicit a confession, had earlier been rejected in R v. H [ 1987] Crim L.R. 47.
62. In R v. Gill and Nanuana [ 1989] Crim LR 358, CA, the court deemed admissible conversations with officers (introduced to the defendant by an informant) who had posed as IRA members willing to kill for money.
63. Likewise, in R v. Dixon and R v. Mann (Court of Appeal Criminal Division, 20 December 1994; (1995) NLJ 145, 6684) recordings were allowed of conversations with undercover officers posing as contract killers.
64. The Times, 9 March 1993.
65. Another innovation with which the courts so far seem content is the 'trap car'. This is a vehicle left unlocked with the keys in view, which, when stolen, stops and locks automatically after a few metres, trapping the thief inside (see P. Noble, 'Entrapment', Solicitors Journal, 137 (20), 23 May 1994).
66. [1994] Crim LR 750. This point is well illustrated and developed in A. Choo and M. Mellors, 'Undercover Police Operations and What the Suspect Said (Or Didn't Say)' Web Journal of Current Legal Issues (1995), 2 Web JCLI, p. 8-10.
67. Confidential Policy Guidelines were issued in 1990 by the Association of Chief Police Officers under the title Use of Undercover Police Offices in Major Crime Investigations.
68. Stephen Gilchrist, for example, wrote: 'Hopefully this will provide a justifiable opportunity for courts to censure evidence, hitherto admitted, of police officers, which in recent cases has been demonstrated to be not only improper but downright dishonest in an endeavour to entrap suspects.' (Solicitors Journal 137 (43) November 1994.)
69. For an ethnographic account of such trading in the East End of London, see D. Hobbs, Doing The Business (Oxford: Clarendon Press, 1989).
70. Even in the early 1990s, research indicated that only around half of all detectives had informants registered to them, that only a minority of these were regularly used, and that the payments made were almost all very small (see Audit Commission, Doing The Business, op cit., p. 39;
71. M. Maguire M. and T. John, Doing The Business, op cit., pp. 9-15, 27-30).
72. For historical accounts of scandals associated with from the use of informers, see D. Ascoli, The Queen's Peace (London: Hamilton, 1979)
73. and B. Cox, J. Shirley and M. Short, The Fall of Scotland Yard (Harmondsworth, Penguin, 1977)
74. See, for example, O. Campbell, The Underworld (London: BBC Books, 1994).
75. This is not to say that the practice of giving 'discounts' on sentences to major criminals for giving evidence against former associates has disappeared. A recent variation on the theme was the early release from long sentences, by executive order of the Home Secretary, of two prisoners who had cooperated in this way (The Observer, 8 September 1996).
76. A revised set of Guidelines on the Use and Management of Informants, based on the recommendations of the Association of Chief Police Officers Crime Committee, was issued to police forces in 1995. These have not been made available for public inspection.
77. C. Dunnighan and C. Norris, 'A risky business: Exchange, bargaining and risk in the recruitment and running of informers by English police officers', Paper to Annual Conference of the American Society of Criminology, Boston USA, 14-18 November 1995.
78. Guidelines for the Disclosure of Unused Material' to the Defence in Cases to be Tried on Indictment [ 1982] 1 All ER 734.
79. Guidelines 6-13.
80. R v. Ward (1993) 96 CrAppPR 77, at p. 676.
81. Guidelines for the prosecution in making application to the judge for public interest immunity from the duty to disclose material were given by the Court of Appeal in R v. Davis, Johnson and Rowe ( 1993) 97 CrAppR 110; [1993] 1 WLR 613. These make clear that the defence should normally be informed of the nature of the material which the prosecution wishes to withhold and should have the opportunity, in an inter partes hearing, to argue the contrary case. However, in cases where to reveal the general category of the material would simultaneously reveal its precise content, the prosecution could be granted an ex parte hearing; and in 'highly exceptional' circumstances, where even to reveal that an application was being made would 'let the cat out of the bag', such a hearing could be held without even informing the defence that it was taking place.
82. C. Brants and S. Field, Participation Rights and Proactive Policing (Deventer: Kluwer, 1995).
83. The use of closed circuit television systems (often with hidden cameras) in commercial premises, city centre streets, residential areas and places of employment hus mushroomed in recent years with very litte regulation, either of the placement of cameras or of the use of recordings. Tapes of dramatic incidents (including sexual acts and attempted suicides), have been shown on television or sold to the public without permission being obtained from those whose images appear, and the police are often given unlimited access to privately owned tapes (for a general discussion of such developments, see C. Norris, J. Moran and G. Armstrong, 'Algorithmic Surveillance: The Future of Automated Visual Surveillance', Paper to Conference on CCTV, Surveillance and Social Control, University of Hull, 9 July 1996).
84. The only related areas in which the government has given serious attention to regulation through legislationg derive from complaints by royalty and other celebrities about press photographers either using long distance lenses to film in private areas or continously following ('stalking') them. Recommendations in this area were made by the Calcutt Committee (Report of the Committee on Privacy and Related Matters, Cnmd 1102, 1990) but were not acted upon. 65.
85. The central importance of disclosure to adversarial systems of justice, and the problem of reconciling this with the secrecy necessary in covert policing, are succinctly discussed by C. Brants and S. Field (Report of the Committee on Privacy and Related Matters, op cit. p. 65-68).
86. See, for example, D. Ascoli (Report of the Committee on Privacy and Related Matters, op cit.);
87. B. Cox et al (Report of the Committee on Privacy and Related Matters, op cit.);
88. T. Kaye, Unsafe and Unsatisfactory? Report of the Independent Inquiry into the Working Practices of the West Midlands Serious Crime Squad (London: Civil Liberties Trust, 1991);
89. M. Short, Lundy: The Destruction of Scotland Yard's Finest Detective (London: Grafton Books, 1991).
90. Parliamentary Enquiry Committee (Lundy: The Destruction of Scotland Yard's Finest Detective, op cit.).