If the experiences of the political activists who were spied upon by former Special Demonstration Squad (SDS) and National Public Order Intelligence Unit (NPOIU) officers have taught us anything it is that covert intelligence methods can offend basic human rights standards and still fall on the right side of the criminal law. There is no clearer illustration of this fact than the situations of the many women who were deceived into intimate relations with undercover officers, and who suffered devastating psychological effects once that particular covert policing tactic was exposed. Despite it being acknowledged by the Metropolitan police that the relationships which its employees pursued in furtherance of their covert activities were “abusive, deceitful, manipulative and wrong”, there has, as yet, been no acknowledgement that any of the criminal law categories governing sexual violence (rape, indecent assault) appropriately characterise the officers’ misconduct.
It is in light of the undoubted violence of non-criminal covert policing that I approached my reading of the Covert Human Intelligence Sources (Criminal Conduct) Bill, which reaches its final stages in the House of Commons today. As stated in its preamble, the Bill seeks to “[m]ake 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”. The Bill has already been subjected to trenchant criticism, not least because “it does not rule out murder, torture or sexual offences…[when]...[o]ther countries...spell out the limits for those operating undercover” (Guardian, 11 October 2020). I share these concerns, and, given what non-state core participants in the on-going public inquiry into undercover policing have caused to be revealed about the notorious Mark Kennedy, it would be unwise of me to discount the fact that what were indisputably criminal acts resulted in the destruction of many a thriving political campaign. However, it is section 1(6) of the Bill that rings alarm bells for me. On its face, the provision seems innocuous enough. It mandates that the public bodies charged with responsibility for deciding whether the commission of a criminal act in the course of undercover surveillance is justified should not grant a “criminal conduct authorisation” if they conclude that “what is sought to be achieved by the authorised conduct could reasonably be achieved by other conduct which would not constitute crime”. The implication that decisions about the deployment of non-criminal covert activities can be safely left to the entirely unregulated discretion of undercover officers is extremely disquieting when viewed against the period of undercover policing which is now the subject of the public inquiry. The mention in section 1 (7) of the need to take account of the Human Rights Act 1998 provides some safeguards; nor do I overlook the possibility that the inquiry's eventual findings might prompt further legislation. Nevertheless, I was left with the sense that, through section 1 (6), the practices which the SDS and NPOIU established between 1968 and 2011 have been tacitly endorsed. According to such practices, any action designed to uncover intelligence that could be used against, among others, family justice campaigners and environmental and animal rights activists is acceptable, provided that the action in question does not carry the technical attributes of a crime.