Covert human intelligence sources

Simon McKay, of McKay Law Solicitors & Advocates of Leeds, looks at the role of informers.

The role of informers, or covert human intelligence sources, in an investigation can often cause considerable problems if there is a subsequent prosecution. A useful and illustrative authority of the difficulties is the case Farrell v The Queen, a 2002 Court of Appeal decision. Farrell was seen fleeing the scene of a police and Customs raid on business premises in South Yorkshire where it was believed that contraband cigarettes were being smuggled into the country under the guise of being deliveries of clothing. He had been present in a white car where his handheld computer was later recovered during a search. He was later arrested and charged with a number of others with fraudulent evasion of tax offences.

During the trial it became clear that there was an issue about the possible involvement of a covert human intelligence source. In his defence statement the appellant alleged that there was a participating informant working for the authorities and that this source had planted any evidence incriminating him. His case was that he was purchasing what he believed to be garments at the time and had been set up by the informer who was awaiting sentence for unrelated offences and wished to ingratiate himself with his handlers in order to achieve a lighter sentence. There were a number of public interest immunity hearings attempting to resolve the disclosure issues arising and the judge allowed the defence to explore, in a limited way, the role any informer may have played in the case. By the time of the summing up, it was so obvious that the individual concerned was in fact an informer, the trial judge directed the jury “to conclude on all the evidence that you have heard that Mr X is an informant”. Farrell was, in any event, convicted. He appealed on the grounds that the approach the court had taken to disclosure about the informer had been wrong.

The Court of Appeal considered the key principles of law. The leading case is the well known authority on disclosure of R v Keane (1994). This too related to the disclosure of the identity of an informer during the course of a criminal trial. The Lord Chief Justice in Keane emphasised that in resolving whether to disclose the identity of a source, the court needed to carry out a balancing exercise, although “if the disputed material may prove the defendant’s innocence or avoid a miscarriage of justice, then the balance comes down resoundingly in favour of disclosing it”. There was a framework that needed to be adopted, considering first the relevance or potential relevance to an issue in the case, as well as the realistic prospect that disclosure may provide a lead to further enquiries. A year later, in R v Turner (1995), the Court of Appeal placed great importance on judges scrutinising with great care applications for disclosure of informers’ details and being “robust” in declining such applications if it was not in the interests of justice to do so.

In Farrell, the Court of Appeal applied these principles to the facts of the case. The defence knew the identity of the individual and was able to assert that he had planted the incriminating evidence in the car. They had argued that confirming this to the jury was of key significance but their Lordships concluded there was ample evidence available to them to cross-examine witnesses and in due course make submissions. The trial judge had carried out the balancing exercise conscientiously and while concluding that it was not necessary to direct the prosecution to disclose it, had directed the jury not only to reach the view that Mr X (as he became known) was an informant, but also that he was at the centre of the events that had led to Farrell’s arrest. The trial judge had also directed the jury in favourable terms about the informer’s motivation to lie in order to minimise his sentence.

While the Appeal Court felt the judge could have made the direction earlier,