Undercover issues

Undercover officers: celebrate their successes but don’t allow them to become second-class citizens warns Simon McKay of McKay Law Solicitors & Advocates of Leeds.

The announcement this week by the Serious and Organised Crime Agency (SOCA) about the success of its undercover work against the drug target is extremely welcome. The public consultation paper in relation to the Regulation of Investigatory Powers Act (RIPA) 2000 also uses case studies of undercover operations to illustrate the unique value of a properly conducted covert policing deployment.
While undoubtedly the most challenging area of policing, successful undercover work, can and often does, yield spectacular results such as, for example, the arrest and conviction of three Real IRA terrorists in 2002 following a joint Security Service and SO13 operation based here and in Eastern Europe. Equally there are aberrations, like the highly-flawed honey trap operation against Colin Stagg, which received advice from ‘Jigsaw Man’ Paul Britton, who in his book of the same name, suggested that serial rapist and murderer Robert Napper was unlikely to be the perpetrator of the Rachel Nickell murder on Wimbledon Common in 1992; in December last year, Napper pleaded guilty to her murder.

Officers’ welfare
Amid the celebrations and at times condemnations there can be a tendency to forget about the undercover officers who carry out this difficult, dangerous and stressful work and their families who often live through the same pressures encountered by their spouse. Joe Pistone, the real ‘Donnie Brasco’, was the after dinner speaker at the national Covert Policing Conference a couple of years ago and reflected on a phone call he had with his wife in the immediate aftermath of attempts by the mafia to rope him into a conspiracy to murder after he had penetrated their ranks as an undercover officer. “All I wanted to do was hear a voice from my other life,” he said. “I needed it like oxygen and if I didn’t get it, I thought I would suffocate.” He found a public telephone and at great risk to himself, called his wife. “All she wanted to do was tell me about the broken fridge and how our kids weren’t doing what she had asked them to.” He poignantly recalled how everything moved into sharp focus: “There I was, risking compromising myself and years of work and my wife just wanted to tell me about the things going wrong in her life at that moment.” Pistone became emotional: “But you know what?” he asked rhetorically in his characteristically ‘wise guy’ way, “I realised she was living undercover, just as much as I was.”
The welfare of undercover officers, whether working for the police or the agencies, is an acute issue that needs to be addressed. There are legal obligations, both under RIPA 2000 but also at common law that need to be discharged fully and conscientiously. Their needs to be funding for expert help in de-briefing officers and, where appropriate, their families. Officers need to be able to exit undercover work in an atmosphere of being able to speak candidly about their experiences and feelings, not in a state of anxiety about judgments people may make about their psychiatric or psychological health. Moreover, their contribution needs to be recognised at the most senior levels of the organisation, as often they are poles apart and the stratospheric levels of police forces and government departments at times lack visibility of the sacrifices of these men and women, who by necessity, aspire to sustain a degree of anonymity because of the nature of the job they do. Some work is being done by some organisations and individual police forces but this is a national issue and needs to be treated as such. Working groups more often than not focus on the compliance and evidential dividend of deploying undercover officers and miss or underplay the critical issue of support.

Legal principles
Consideration of the legal principles of when a force or organisation may or may not be successfully